G.P.Agarwal, - (1.)BEING dissatisfied with the confiscation of the imported subject goods with an option to redeem the same on payment of redemption fine of Rs. 15,000/- the appellant has filed the present appeal.
(2.)Factual backdrop: The appellant imported 1152 Kgs nett of Glass Beeds contained in 24 cases sent from Czechoslovakia on 28.4.1985 as per supplier's Cross Border Certificate No. 680-52765 dated 28.4.1985, shipped from Hamburg, West Germany on 9.5.1985 as per Bill of Lading No. 1 dated 9.5.1985 and arrived at Calcutta per N.V. Calabar, Rot No. 321/85 dated 21.6.1985 under Line No. 12. On arrival the appellants sought the clearance of the imported goods under ITC Licence No.PK/L/M/3019946 dated 31.3.1984 which had already expired on 31.3.1985. On examination of the documents by the authorities concerned it was found that the subject goods were supplied in terms of irrevocable Letter of Credit dated 27.9.1984 on account of New Bank of India Limited against another Import Licences Nos.P/L/302614/C/XX/91 dated 19.5.1984 and P/L/3020612/C/XX/91 dated 19.5.1984 as indicated in the Letter of Credit and also in the covering Invoice No. 615-167-Oil dated 25.4.1985. On being pointed out as to how appellants are claiming clearance of the imported goods under different Licence No.PK/L/M/3019946 dated 31.3.1984 which had already expired on 31.3.1985 the appellants pleaded that the time of opening of Letter of Credit Licence No. 3019946 dated 31.3.1984 was not readily available. The appellants further pleaded that the instant shipment tantamounts to have taken place on 28.4.1985 which is within the grace period of 28 days from the date of expiry of the said licence. On this plea the appellants requested the adjudicating officers to condone the delay of 28 days in terms of Paragraph AM 209(1) of the Hand book of Import-Export procedures, 1983-1984. However, the Deputy Collector of Customs who adjudcated the case did not agree with the said plea advanced by the appellants and ordered for the confiscation of the imported goods but gave an option to the appellants to redeem the subject goods on payment of redemption fine of Rs. 15,000/-in lieu of confiscation vide his adjudication Order dated 29.1.1986. Against this order of adjudication the appellants went in appeal before the Collector of Customs (Appeals), Calcutta. In the appeal before the lower appellate authority the main thrust of the argument of the appellant was that the adjudicating officers' refusal to condone the delay in shipment for only 28 days tantamounts to discrimination against the appellants since condonation for delay in shipment is normally allowed by Customs Authorities. However, in the facts and circumstances of the case the lower appellate authority did not agree with the said contention of the appellants and ultimately upheld the adjudication order and rejected the appeal. Hence the instant appeal.
Shri S.V. Thawrani, learned Counsel appearing for the appellants submitted that in the instant case clearance of the imported goods was sought under ITC Licence No.PK/L/M/3019946 dated 31.3.1984 which was valid upto 31.3.1985 and confirmed irrevocable Letter of Credit was opened on 27.9.1984 and the goods were shipped on 28.4.1985, i.e. to say within the grace period of 60 days allowed under para AM 209(1) of the Hand Book of Import-Export Procedures, 1983-1984. He further submitted that when the import of the subject goods was valid under para 323 read with para 325, ibid the authorities below should have condoned the delay of 28 days under their discretionary powers which they failed to do so. This act of refusal to condone the delay, according to the learned Counsel amounts to misuse of discretion given to the authorities under para 209(1), ibid. He also submitted that the said Licence No.PK/L/M/3019946 dated 31.3.1984 under which the appellants claimed the clearance was a REP Licence and it was also trans-ferred to another Firm namely M/s Jain Beads Centre, Calcutta. On transfer the said Im-porter namely M/s Jain Beads Centre, Calcutta imported the identical goods under cover of the Bill of Entry No. W. R. 3554 of 6.9.1985. In that case submitted the Counsel, there was a delay of 30 days in shipment which was condoned. He also cited few other examples where the goods were shipped during the grace period and the delay was condoned. On this premises he submitted that the refusal to condone the delay in the instant case in terms of para 209(1), ibid amounts to discrimination within Article 14 of the Constitution of India which is not permissible in view of the following case -

(1) Shahibzada v. State of M.P., AIR 1960 SC 768.

(2) Irani v. State of Madras, AIR 1961 SC 1731.

(3) Purshottam Lal v. Union of India, AIR 1973 SC 1088.

(4) AIR 1981 SC1936.

(3.)IN reply Shri M.C. Thakur, learned SDR submitted that in order to facilitate shipment/despatch of goods against licence, a grace period not exceeding 60 days is allowed after the date on which the licence expires under sub-para (1) of para 209 of the Hand Book of Import-Export procedures, 1983-1984 and this grace period cannot be claimed as a matter of right as provided in sub-para (4) of para 209 itself. IN the process, he submitted that the exercise of the discretion vested in the customs authorities to condone the delay occurred during the grace period 'depends upon the facts and circumstances of each and every case and no parallel can be drawn from the other case/or cases and therefore, no question of any discrimination arises so as to attract Article 14 of the Constitution of INdia, in the instant case submitted the learned SDR no circumstance or circumstances much less unavoidable was pointed out by the appellants to convince the authorities below why the subject goods could not be shipped during the currency of the licence. On the other hand, the appellants deliberately submitted the said licence for clearance of the impored goods on the assumption that it is the right of the importer to get the clearance of the goods if the goods are shipped after the expiry of the licence but within the grace period of 60 days as allowed under para 209(1), ibid. He further submitted that in the instant case Letter of Credit under which the subject goods were supplied and imported was opened against another import licences and not under the import licence on the strength of which the clearance of the subject goods was sought by the appellants.