JAIN SHUDH VANASPATI LTD Vs. JAIN EXPORTS PVT LTD
LAWS(CAL)-1983-9-6
HIGH COURT OF CALCUTTA
Decided on September 22,1983

JAIN SHUDH VANASPATI LTD Appellant
VERSUS
JAIN EXPORTS PVT LTD Respondents

JUDGEMENT

- (1.) AFTER hearing the eleborate arguments advanced by Mr. Ray learned Counsel appearing on behalf of the petitioner in respect of the prayer for further interim order in terms of prayers (d) and (e) and also the arguments advanced by Mr. Roy Choudhury, learned Counsel appearing on behalf of the Union of India, I am not inclined to make any further interim order besides what has been granted by this court at the time of issuing the rules for the reasons stated. hereinbelow.
(2.) THE subject-matter of challenge in these writ applications is a notice, annexure A, issued by the Deputy Chief controller of Imports and Exports on 8th September, 1983 under Clause 10 (e)of the Import and Export Control Order, 1955 directing the petitioner to show cause why he will not be directed to sell the soyabean oil imported by him to the State Trading Corporation and a certain time has been granted. Reason for such notice has been stated in para 4 of the said notice that the Dy. Chief controller of Imports and Exports was of the view that the imported material should not be used for the purpose for which the import has been made by
(3.) IT has been urged on behalf of the petitioners that since there has already been a determination by the Customs authorities that soyabean oil of the variety not edible do not fall under the restrictive clause of the import policy prevalent during the year 1980-81 and it has also been found by the customs authorities that in similar matters it has been held by the Board that such type of non-edible oil did not come within the mischief of the import policy permitting such import of soya-bean oil by any other agency except by the State Trading Corporation. The customs authorities therefore directed for release of the goods on payment of certain sums of customs duty and regarding the difference of duties, there was a further challenge before this Court and the court directed release of the goods on certain terms which the petitioner has complied with and in fact part of the goods were released. But subsequently the Impugned notice, annexure A, has been issued by the Dy. Chief Controller, Import and export as stated hereinbefore. It has been urged by Mr. Roy in support of the Writ application that after the determination by the Customs authorities that the goods were imported under the import license issued by the Import and Export Controller, it is not within the purview of the Import and Export controller to make any order contrary to the order of the Customs authorities opining that it does not cover under the import license issued. Because Mr. Ray referring to the Note-book of Import and Export procedure, paragraphs 32-35 has stated that the final decision in such matters lay with the Customs authorities and as such It was beyond the jurisdiction of the import and Export Controller to pass an order contrary to the order of the Customs authority. In support of the submissions, mr. Roy has cited at the Bar several decisions of the Supreme Court as well as of the Madras High Court. It has been further submitted by Mr. Roy that clause 10 (e) of the Import and Export Control order, 1955 is not applicable as there is no whisper in the impugned notice that the goods imported cannot be used by the importer for the purpose for which it was imported and as such the notice is not a proper notice as envisaged under clause 10 (c) of the Import and Export Control order. It is therefore submitted that this notice should not be allowed to be given effect to and since the petitioner is recurring damages of a huge amount as the goods are lying in the port, a proper interim order should be made to enable the petitioner to have the goods released and to transport them for sale to the various parties. It has also been submitted by Mr. Roy in this connection that there is specific provision for appeal under, section 129 (A)and also a suo motu provision for calling for the records and after considering the same for sending the same to the appellate authority under the customs Act ( section 129 (D) ) and as such the impugned notice of the Import and Export Controller is also illegal inasmuch as in view of the statutory remedy provided for it would have been fit and proper for the Import and Export Controller to avail of that statutory remedy by preferring an appeal before the Board for appropriate order in this matter.;


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