Shelat, J. - (1.) On March 31, 1959 the respondents obtained a licence to import certain machinery from West Germany. The import licence contained particulars of the machinery to be imported and inter alia stated that its value would be "C.I.F. value of Rs. 45,000. One of the conditions upon which the licence was issued was that"The above application is accepted and import licence is granted having quantity and value as the limiting factor and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than five per cent
(2.) The machinery arrived at the port of Calcutta sometime in July 1960 and was allowed to be cleared on the bill of entry submitted on behalf of the respondents. The bill of entry showed the CIF value of the machinery at Rs. 44,843. 61 nP. The customs authorities thereafter assessed the duty payable on the said machinery and the duty so assessed was paid by the respondents. On May 6, 1961, in consequence of certain information received by the authorities a search was made of the business premises of the respondents and also of Stahlumon and Co. Ltd. the agents of the exporters. As a result of the search certain documents and papers were seized by the customs authorities. On June 19/20, 1961 a notice was served upon the respondents calling upon them to show cause why action should not be taken against them under S. 167 (8) of the Sea Customs Act, 1878 The notice alleged that the respondents were guilty of illegal import of goods worth Rs. 6,730.74 np that being the excess value of the goods permitted to be imported under the said licence. The respondents in due course gave their explanation. Thereafter an amended show cause notice dated September 21, 1961 was served upon the respondents charging them under S. 167 (8) of the Sea Customs Act read with S. 3 (2) of the Imports and Exports Control Act, 1947 for illegally importing the said consignment. The respondents were given a personal hearing and thereafter the first petitioner passed an order dated March 17, 1962 directing confiscation of the said machinery and imposing a fine of Rs. 20,000 in lieu of confiscation and further imposing a personal penalty of Rs. 25,000. Aggrieved by this order the respondents filed a petition in the High Court under Art. 226 of the Constitution praying for mandamus directing the petitioners to rescind the order dated March 17, 1962 and for certiorari quashing the said order. The learned single Judge who heard the petition passed an order dated September 2, 1963 dismissing the petition holding that the said import was illegal. Thereupon the respondents filed an appeal against the said order and the Appellate Bench of the High Court by its order dated December 18, 1964 allowed the respondents appeal directing the petitioners to forebear from giving effect to the said order of the first petitioner. The petitioners filed an application for a certificate under Art. 133 but the Appellate Bench of the High Court by its order dated August 17, 1964 dismissed the said application on the ground that it was barred by limitation, though holding that (i) the valuation tests laid down in sub- Cls. (a) and (b) of Art. 133 (1) were satisfied, and (ii) that the order being one of reversal the petitioners were otherwise entitled to a certificate.
(3.) The intended appeal was against the said order dated December 18, 1964 by which the High Court issued the writ of mandamus against the petitioners.;