- (1.) THIS petition is companion to Miscellaneous Petition No. 578 of 1971 in which yesterday, we delivered judgment. The issue involved in the present petition is identical. The petitioners secured import licence dated August 8, 1961 and one of the condition of the licence provided that the goods proposed to be imported must cross Hungarian border on or before February 28, 1962. The petitioners filed bill of entry for home consumption in respect of the import on november 20, 1963. The goods had arrived in Bombay Port on June 7, 1963. On scrutiny of the bill of entry for home consumption, it was noticed that the goods had been shipped on March 13, 1963. i. e. , after a year from the date the goods are purported to have crossed the Hungarian boarder. The Collector of Customs, Bombay, thereupon commenced proceedings for confiscation and for levy of penalty as prescribed under the provisions of the Customs Act as the import was clearly in violation of the conditions of the licence.
(2.) THE importer claimed that the goods were dispatched by the foreign supplier from Budapest to Stettin Port prior to February 28, 1962 and the goods infact crossed Hungarian border prior to february 28, 1962. The importer claimed that the goods did not reach Stettin Port but by mistake went to Port Gdausk in Poland. The mistake was detected only in September, 1962 and thereafter the goods could not be retrieved as Gdausk Port was frozen due to winter. The importer claimed that after the goods were retrieved, the same were dispatched to India and, therefore, the condition of import that the goods should cross Hungarian border on or before February 28, 1962 was strictly complied with. In support of the claim, the importer produced Cross Border certificate dated February 27, 1962 issued by Hungarian General Forwarding Enterprise. The Collector of Customs by impugned order dated October 30, 1965 held that the claim made by the importer cannot be accepted. The Collector noticed that the Cross Border Certificate produced by the importer is of dubious nature and there is no material to corroborate the claim that the goods were in fact dispatched by the foreign supplier from Budapest to port Stettin prior to February 28, 1962. The Collector thereupon confiscated the goods but gave an option to pay a sum of Rs. 1,00,000/- in lieu of confiscation and clear the goods. The Collector also imposed a penalty of Rs. 1,00,000/- upon the importer. The importer carried an appeal before Central Board of Excise and Customs, New Delhi, but the appeal ended in dismissal by order dated October 11, 1968. The Appellate authority concurred with the conclusion of the Collector that the consignment did not cross Hungarian border before February 28, 1962 and, therefore, the import was in violation of the mandatory condition of the import licence. The decision of the two authorities is under challenge in this petition filed under Article 226 of the Constitution of India.
(3.) SHRI Gandhy, learned Counsel appearing on behalf of the petitioners, submitted that the two authorities below failed to attach proper weight to the Cross Border Certificate relied upon by the importer. The learned Counsel also urged that the burden was heavily upon the Department to establish that the condition under the import licence was not adhered to and the Department has failed to discharge that burden. The learned Counsel further argued that the correspondence produced by the importer indicates that the foreign supplier had indeed dispatched the goods from Budapest and the consignment crossed the Hungarian border before February 28, 1962. Finally, it was contended that the authorities below were in error in imposing penalty when the breach committed by the importer, if any, was not intentional. We are unable to find any merit in the submissions. Identical submissions urged in the companion petition were turned down by our judgment delivered yesterday. The claim of Shri Gandhy that the authorities below were in error in not attaching proper importance to Cross Border Certificate cannot be acceded to for more than one reason. In the first instance, it cannot be overlooked that it was for the authorities below to determine on appreciation of evidence as to whether a particular piece of evidence should be accepted or otherwise and the conclusion reached by the authority cannot be disturbed in exercise of writ jurisdiction. Secondly, even on merits, we are unable to accept the contention that the Cross border Certificate should have been relied upon blindly by the Collector of Customs. We repeatedly enquired from the learned Counsel as to whether there is any material to indicate that the foreign supplier had dispatched the consignment from Budapest to Port Stettin prior to february 28, 1962 and the answer was in the negative. In case, the foreign supplier had dispatched the consignment by road, then nothing was easier than to produce the delivery receipt. The foreign supplier would have also supplied gate passes to the importer to establish that the consignment was dispatched prior to February 28, 1962. Shri Gandhy relied upon letter dated June 14, 1962 from the foreign supplier and in which it is claimed that the Forwarding agent in Port Stettin had sent the message that the consignment has not arrived which was dispatched in February, 1962. It is impossible to conclude from this statement in the letter that the foreign supplier had indeed forwarded the consignment prior to February 28, 1962. The importer had addressed letter dated March 22, 1962 to the foreign supplier demanding that the document should be forwarded to establish that the term in the licence that the consignment crossed Hungarian border before February 28, 1962 is strictly complied with. The foreign supplier has not done anything except forwarding Cross Border Certificate which is obviously of dubious nature. In absence of any corroborative evidence, it is impossible to place reliance on such certificate. In our judgment, the authorities below were perfectly right in discarding the certificate and concluding that the condition of licence was not complied with and consequently, the import was in breach of the terms of the licence.;