SUNSHINE EXPORTERS Vs. UNION OF INDIA

JUDGEMENT

(1.) The short point for determination to which I propose to restrict myself in this judgment dealing with a petition under article 226 of the Constitution, is the maintainability thereof having regard to the facts and circumstances in which it is shrouded.

(2.) Petitioner is a firm registered under the Partnership Act and deals in the export and import of various kinds of goods. Respondent No. 1 is the Union of India and respondents 2 to 4, the officers of the customs departments. Petitioner is a transferee of REP licences issued under Appendix 17 of the Policy AM, 85-88. Purporting to exercise the right given to it under the transfer, petitioner imported goods described as a "mixture of odoriferous substances". The goods came in two consignments under bills of entry dated 5.6.1986 and 7.6.1986. An initial test of the goods was carried out by the Deputy Chief Chemist and he issued a report certifying that the sample taken was a mixture of odoriferous substances (OS), liquid in form and being free from alcohol. The goods were however held up on the suspicion of their being "perfumery compound" (PC). It may be here mentioned that the rate of duty on OS and PC is the same, though in terms of money there would be a substantial difference because of the valuation between the two, being much different. To fortify the belief that the imported goods were PC, the respondents took various steps, including a re-examination of another sample of the consignment, seizure of various documents and articles from the office/residence of the partners of the petitioner, and, also collecting material from other agencies including interrogation of a partner of the petitioner. On 6th November, 1986, the present petition seeking various directions was filed. The first direction is that the goods covered by bills of entry dated 5.6.1986 and 7.6.1986 be allowed to be cleared by charging the normal rate of duty after accepting the price shown in the invoice; secondly, to forthwith release the goods seized from the residence of the partners of the petitioner without levying any fine or penalty thereon; thirdly, to forthwith hand over to the petitioner all the document, bills, papers and files etc., and the samples seized from its office premises, and fourthly, to issue a detention certificate for the entire period the imported goods were not allowed to be cleared. So far as the goods seized from the residence of a partners of the petitioner are concerned, it has to be mentioned that these were released in February 1987, on the finding that after a test they were found to be mixture of OS in liquid form.

(3.) Respondents have come forthwith two affidavits : First, at the stage of opposing the admission, and the second, filed as recently as 13.2.1987. Amongst other defences, it is urged that the petition is premature and intended to pre-empt the jurisdiction of the authorities under the Customs Act. It is argued that but for the uncooperative attitude of the petitioner, an order in adjudication would have been passed much earlier. Petitioner is responsible for the delay that has occurred, and the pendency of the petition has acted as a deterrent to the authorities going ahead with the adjudication. To meet this submission, counsel for the petitioners advanced the fallowing contentions : Firstly, the petition was instituted after quite sometime of the refusal to clear the bills of entry tendered on 5th and 7th of June, 1986. Respondents took their own time in filing an affidavit in reply. For that reason, the issue of rule was delayed till as late as 15.12.1986. After granting the rule, a direction was given that the petition be heard peremptorily in January 1987. Again, this could not be done because of the failure of the respondents of file a return. At any rate, the stage of admitting the petition, the advisability or otherwise of taking up the hearing had been appraised and now that the petition has been admitted, it would not be proper to send back the petition to be heard by the authorities constituted under the Customs Act. The attitude of the respondents was clear from the bias indicated by the two returns submitted on their behalf. In the fact of this evidence, petitioner could not expect to get justice from the respondents. As it is, the matter was delayed and it would not be proper to relegate petitioner to the very stage at which it was, in the first week of June 1986 when the bills of entry were tendered. Lastly, the record was adequate to resolve what was basically a simple classification dispute. Mere bickering on the part of the respondents could not convert it into a dispute raising many and complicated questions of fact, and normally determinable, in a proceeding under article 226 of the Constitution.