- (1.) M/s Northern Plastics Ltd. is the common appellant in these two appeals moved by it after obtaining special leave to appeal from this court against a common judgment dated 9/3/1990 passed by the High court of Delhi in two civil writ petitions, one moved by M/s Hindustan Photo Films Mfg. Co. Ltd. ("hpf" for short). respondent 1 in CA No. 2035 of 1990, and the other the Union of India, respondent 1 in thecempanion Civil No. 2036 of 1990. The question posed for our consideration is as to whether the 1st respondent in these civil writ appeals could be said to be "persons aggrieved" within the meaning of Section 129-A of the Customs Act, 1962 (hereinafter referred to as "the Act") so that they could challenge before the Customs, Excise and Gold (Control) Appellate tribunal ("cegat" for short) the order passed by the Additional Collector of Customs, Bombay dated 5/6/1989 agreeing with the nothings made by the Assistant Collector of Customs dated 31/5/1989 recommending release of the imported goods to the common appellant on payment of full customs duty. The CEGAT took the view that respondent 1 in both these appeals had no locus standi to prefer appeals against the said order. The High court of Delhi by the impugned judgment has taken a contrary view and has ruled in favour of the locus standi of these respective respondents.
(2.) Before we deal with the aforesaid question it will be necessary to note the relevant background facts leading to the present controversy between the parties. They project a chequered history. The common appellant, Northern Plastics Ltd. , which will hereinafter be referred to as "the appellant" for the sake of convenience, is said to have obtained Small-Scale Industries Registration (SSI Registration) on 24/8/1985 for slitting and confectioning of jumbo rolls of various types of films. The said registration, according to the appellant, was obtained under The Industries (Development and Regulation) Act, 1951 ("idr Act" for short). A notification was issued by the competent authority under the said Act on 18/7/1986 effectively taking away the exemption from requirement of licence in respect of Item 20 of the First Schedule to the IDR Act thus making it obligatory for the owner of industrial undertaking to have licence within six months. It is the case of the appellant that although it was not the owner of industrial undertaking as defined by the IDR Act, under a mistaken belief it applied for COB licence on 8/12/1986. On 7/7/1988 a notification was issued by the central government in exercise of its powers under Ss. (1 of Section 25 of the Act exempting jumbo rolls of graphic art films and jumbo rolls of photographic colour paper, of width I metre or more and of length 600 metres or more, falling within Ch. 37 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975, when imported into India, from so much of that portion of the duty of customs leviable thereon under the said First Schedule as was in excess of the amount calculated at the rate of 60. 00 per cent ad valorem, subject to the following conditions: (I) the importer undertakes conversion of the said jumbo rolls by slitting or confectioning into finished products; (Ii) the importer holds an industrial licence under the Industries (Development and Regulation) Act, 1951 (65 of 1951, for slitting and confectioning of photo-sensitised materials from jumbo rolls. According to the appellant the benefit of this concession in import duty on the jumbo rolls of various types of films which were being imported by the appellant was available to it. The appellant had imported various 457 consignments of articles of X-ray films and graphic art films through the port at Bombay between January 1989 and May 1989. The shipments concerned for the same consignments were made in favour of the appellant by the foreign exporters between 15/12/1988 and 20/4/1989. According to the appellant the goods were worth Rs. 246 lakhs approximately in foreign exchange. That the appellant had paid customs duty amounting to Rs. 196 lakhs on these consignments and the additional duty if the exemption was not available to the appellant on these consignments would have become payable to the extent of Rs. 130 lakhs. The total value of the goods imported at Bombay port by the appellant during the aforesaid period worked up to Rs. 572 lakhs according to the appellant. The Assistant Collector of Customs (Bombay) had not granted the requisite relief of concessional import duty payable for the imported consignments of the appellant. Hence a writ petition being Civil Writ Petition No. 2021 of 1988 was moved by the appellant in the High court of Delhi where principal relief sought was for the grant of benefit of the aforesaid customs exemption notification. A prayer was also made for issuance of COB licence by the competent authorities under the IDR Act. Initially the appellant had not joined M/s "hpf", a public sector undertaking in the said writ petition as a respondent as it was merely a business rival of the appellant. However on an application by the HPF a division bench of the High court by its order dated 8/5/1989 allowed it to be a party-respondent in the appellant's petition. In the aforesaid writ petition filed by the appellant before the High court of Delhi initially an order was passed by a learned Single Judge directing removal and release of the jumbo rolls imported by the appellant at Bombay at concessional rate of customs duty. However this interim order was set aside by a division bench of the High court by its order dated 8/5/1989. Pending this writ petition in the Delhi High court, upon an application by the appellant, an order was proposed to be passed by the Assistant Collector of Customs (Bombay) on 31/5/1989 permitting the clearance of the imported consignment of the appellant upon payment of full rate of customs duty. The said proposed order was placed for approval before the Additional Collector of Customs (Bombay). Below the said proposal the Additional Collector of Customs (Bombay) put his endorsement agreeing to the said proposal on 1/6/1989. The said order which came to be communicated to the appellant on 5/6/1989 entitled the appellant to clear the imported goods on payment of full customs duty without availing of the benefit of the concessional rate of import duty pursuant to the earlier referred notification dated 7/7/1988.
(3.) Having come to know about this order of the Additional Collector of Customs, HPF which is a public sector undertaking wholly owned by the government of India, which was already joined as a party, at its own request, to the appellant's pending petition, moved an interim relief application in that petition for staying the clearance and removal of the goods imported by the appellant. The High court by its order dated 9/6/1989 in vacation granted ex parte stay of the Collector's order. The interim relief applicationof HPF was subsequently heard by another Vacation Judge in the High court on 21/6/1989 and after completion of the arguments on behalf of the HPF on 26/6/1989 a request was made for not pronouncing the judgment in the said interim relief application. However the said request was not granted and the interim relief application of HPF was dismissed on 26/6/1989 by the High court. That thereafter HPF filed a writ petition in the High court of Bombay on that very day, that is, 26/6/1989 praying for similar interim relief against release of the imported goods to the appellant. The High court rejected the request for ex parte interim relief. A special leave petition was also moved by the HPF before this court against the Delhi High court order dated 26/6/1989 vacating the ex parte stay granted against the release of imported goods in favour of the appellant. The said special leave petition was dismissed as withdrawn by this court. After HPF's special leave petition was dismissed as withdrawn by this court on 27/6/1989 a writ appeal was moved by the HPF before a division bench of the Bombay High court against the order of the learned Single Judge refusing to grant ex parte stay in writ petition of HPF, but no interim relief was granted by the High court even in this writ appeal. Under these circumstances HPF filed an appeal to CEGAT on 28/6/1989 against the order of Additional Collector of Customs (Bombay) dated 5/6/1989. An ex parte interim order was obtained from CEGAT for a week up to 6/7/1989. HPF then withdrew the writ petition before the Bombay High court. In the meantime the status quo order granted by CEGAT expired on 6/7/1989 and it was not extended. HPF then filed a writ petition before the High court of Delhi being Writ Petition No. 1932 of 1989 against the order dated 7/7/1989 passed by CEGAT and the division bench of the High court passed an ex parte stay of the order of the Additional Collector of Customs dated 5/6/1989 on 12/7/1989. The High court of Delhi by its order dated 17/7/1989 disposed of Writ Petition No. 1932 of 1989 moved by the HPF against the Additional Collector's order and directed CEGAT to dispose of the appeal of the HPF. The High court, however, further directed that till the final disposal of the appeal by the CEGAT the stay granted on 12/7/1989 would continue. Before HPF's appeal could be heard by the CEGAT an appeal being No. 2072 of 1989 was filed by the Ministry of Industries, New Delhi before CEGAT under Section 129-A of the Act against the very same order of Additional Collector dated 5/6/1989. A bench of CEGAT by its order dated 31/7/1989 dismissed the appeal of HPF against Collector of Customs on the ground that HPF being a business rival of the appellant was not a "person aggrieved" as contemplated by Section 129-A of the Act and hence the appeal was not maintainable. Thereafter on 8/8/1989 the other appeal filed by the Ministry of Industries against the very same order of Additional Collector of Customs was also dismissed as not maintainable, the Ministry of Industries being held not an "aggrieved person" within the meaning of Section 129-A of the Act. Under these circumstances HPF filed another Writ Petition No. 2286 of 1989 in the Delhi High court on 9/8/1989 challenging two orders - (i) the order of CEGAT dated 31/7/1989 holding its appeal as not maintainable; and (ii) the order of Additional Collector ofcustoms (Bombay) ordering release of the imported goods to the appellant. A division bench of the High court while admitting the writ petition restrained clearance of the goods in favour of the appellant pending the writ petition. In the said writ petition the Ministry of Industries was also permitted on its application to be impleaded as a party-respondent. The Union of India representing Ministry of Industries in its turn filed another writ petition being Civil Writ Petition No. 3023 of 1989 on 24/10/1989 before the High court of Delhi against the order dated 8/8/1989 passed by CEGAT against it. That petition was also admitted by the High court of Delhi. Both these writ petitions were heard together and by a common order dated 9/3/1990 a division bench of the High court took the view that the appeals filed by the respective first respondents in these appeals were maintainable before the CEGAT as they could be said to be "persons aggrieved" within the meaning of Section 129-A of the Act and that they had sufficient locus standi in public interest to maintain their appeals. In the result the division bench of the High court partly allowed the writ petitions of both the first respondents in these appeals moved by the Union of India as well as HPF and passed the following order: "We have held that the Union of India and M/s Hindustan Photo Films Ltd. are 'aggrieved persons' and can maintain an appeal under Section 129-A of the Customs Act. The main question in the writ petition at the root of the entire controversy between the parties is whether the said importation of the photo-sensitized material at Bombay was legal or not would not be decided by the Appellate tribunal. But assuming that M/s Northern Plastics Ltd. takes an appeal against our order to the Supreme court and our decision is reversed, still the question of the legality of the importation would be open to the parties to be argued in this writ petition before us. Thus, till the main question of legality of importation is finally disposed of, in the interests of justice, it is necessary that the subject-matter of the controversy, viz. , the imported goods, are preserved in the custody of the Customs Authorities and are not released. Since the goods are now stored under suitable conditions of storage with M/s Northern Plastics Ltd. there is no likelihood of their deteriorating. No variation in our order dated 9/8/19899 in regard to the release of goods is, therefore, called for. The writ petition is partly allowed to the extent indicated above. " As already noted the aforesaid common order of the division bench of the High court of Delhi has resulted in the present two appeals on grant of special leave by this court. Pending these appeals it was felt by this court that the imported goods in question were likely to deteriorate with passage of time and if that happened the contesting parties would stand to suffer irretrievably. Consequently by an order dated 25/4/1990 a bench of two learned Judges of this court was pleased to direct that Chief Controller of Imports and Exports may be appointed as the court Receiver for disposing of the goods in question by sale in auction as expeditiously as possible and 460 at the maximum price they will fetch in the market. It was further directed that the amount of the sale proceeds of the auction shall forthwith be deposited by the Receiver in this court to the credit of these appeals. Accordingly the goods were auctioned. By a further order dated 21/9/1990 another bench of two learned Judges of this court accepted the offer of four purchasers who had offered to purchase all the disputed goods for a total sum of Rs. 1,40,00,000. Four auction-sales were confirmed in favour of the auction-purchasers concerned. By the same order it was directed that the auction amount shall be deposited by this court in a Fixed Deposit Account and the amount so deposited shall remain in the custody of the court and shall be disposed of in accordance with the final judgment in the appeals pending before the Customs, Excise and Gold (Control) Appellate tribunal. The aforesaid order was passed for the obvious reason that by that time under the common judgment under appeal CEGAT was directed by the High court to dispose of the appeals of the Union of India as well as the HPF pursuant to its judgment. However as these appeals are being disposed of finally by us by the present judgment appropriate orders will have to be passed by us in connection with this deposited amount. We shall do so after considering the main question involved in controversy between the parties in these appeals.;