Decided on October 18,1991

New Synthetic Chemical ... Appellant


P.K. Desai, Member (J) - (1.) INVOKING the provisions of Section 130(1) of the Customs Act 1962, the applicants have sought for reference to the High Court on the question of law as formulated by them, as arising out of the Bench's Order No. 495/89 -WRB dated 8.6.1989 in appeal No. CD (Bom) A 1473/83.
(2.) THE applicants, as the Letters of Authority holders, imported a consignment and filed a B/E for home consumption seeking clearance of the subject items under two licences. On scrutiny, the departmental authorities however, found that one of the licences had already been cancelled 'ab initio' and for the other one, proceedings for cancellation ab initio were already initiated. The import was therefore held as unauthorised. From the order in original, it appears that the applicants conceded this position and requested for taking lenient view as they had opened the Letter of Credit prior to cancellation of the licence. The adjudicating authority however ordered absolute confiscation without imposing any personal penalty. The said order was challenged in appeal before the Tribunal where personal appearance was waived and written arguments were submitted for the applicants, and considering the same as also, hearing the Id. JDR for the department, this Bench held that both the licences, on the strength of which the import was made, had stood cancelled ab initio and as such could be held to have not come into existence at all. It was also held that the applicants were mere letter of authority holders i.e. importing for and on behalf of the original licence holders who were supposed to be an industrial unit, who had to be the actual users of the items imported and as such option to pay fine in lieu of confiscation was not required to be given to the applicants.
(3.) SEVEN questions of law allegedly arising out of the aforesaid order of this Bench as formulated by the applicants are at Annexure I to the application. In brief their points are: 1. Whether this Bench is justified in ignoring the judgements of a) the Supreme Court in Mis East India Commercial Co. Ltd. v. Collector of Customs 1963 ELT 1342 : 1984 ECR 138 (SC) : ECR C Cus 269 SC; b) The Calcutta High Court in Mis Chemi Colour Agency v. The Chief Controller of Imports and Exports 1986 (6) ECR 495; c) The Bombay High Court in Bansilal Jesasingh v. Union of India . 2. Whether this Bench, as also the Addl. Collector, could ignore the judgement of Bombay High Court in Re: Bansilal Jesasingh when both are under the Superintendence of the said High Court. 3. Whether this Bench is justified in holding importation as invalid when the date of purported cancellation ab initio of the licence was not known. 4. Whether this Bench has held the letter of authority holder having acted otherwise than in bonafide manner, without evidence. 5. Whether the order of this Bench is perverse and against the principle of natural justice when it presumed certain facts and placed onus of verification on the letter of authority holders. 6. Whether this Bench is justified in ignoring the position that till the date of import of goods, the licences were cancelled. 7. Whether this Bench is justified in ignoring the plea of permitting redemption of 28 drums and payment of compensation for balance of drums already disposed of. Concentrating on the point, whether the Tribunal was justified in holding the import as unauthorised and liable to confiscation vide Section 111(d) of the Customs Act, as the licences were cancelled ab initio, Miss Balsara, the Id. Advocate for the applicants pleaded that the applicants were given the letter of authority in January 1982 and that the letter of credit was opened in favour of suppliers on 31.8.1982, the consignment was shipped on 10.12.1982, the B/E for home consumption was filed on 11.3.1983 whereas the order of cancellation of licence was issued somewhere in April 1983 and as such the licences were not cancelled and were available, on the date of import and as such the import could not be taken as unauthorised. She pleaded that the licence obtained by fraud or mis -representation were voidable and till declared void, they were valid and any import made before cancellation had to be taken as an import under the existing and available licence and in support she referred to the judgement cited in question no. 1 as formulated, as also the order of the CEGAT, WRB in Prabhat General Agencies v. Collector of Customs . She pleaded that this Bench was bound to follow those judgements particularly of the Supreme Court and Bombay High Court and was not empowered to hold a contrary view and that, by such an approach of this Bench, a question of law had arisen which necessitated reference to the High Court of Judicature at Bombay.;

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