- (1.) This writ petition is moved against the adjudication order passed by the authority concerned. It appears from the order that goods were confiscated from the petitioner who is the exporter of the goods and no one filed the Bill of Entry when the original importer did not receive the goods. Since the goods were not passed from the exporter to the importer, the title has not been passed. Therefore, the authority concerned has no business to take necessary steps as against the exporter. Surprisingly, in the observation of the authority concerned under the order it is recorded that the claim is primarily on the ground of equity . It was further recorded that, however it is a settled point of law that equity has no relevance to a case of taxation or tax offence that renders the offending goods liable to confiscation . This observation, according to this Court, is totally contrary to the observation of the Supreme Court in (Union of India v.Sampat Raj Dugar, 1992 58 ELT 163). In paragraph 19 of such judgment it was held as follows : "19. We may first consider the question of title to the said goods. If we keep aside the provisions of law relied upon by the appellants viz., definition of importer' in Section 2(26) of Customs Act, Clause 5(3)(ii) of the Imports (Control) Order as well as para 26(iv) of the Import-Export Policy, the position is quite simple. Since the second respondent did not pay for and receive the documents of the title she did not become the owner of the said goods, which means that the first respondent continued to be the owner. How do the aforesaid provisions make any difference to this position? The definition of importer' in Section 2(26) of the Customs Act is not really relevant to the question of title. It only defines the expression Importer'. The first respondent does not claim to be the importer. The provision upon which strong reliance is placed by the appellants in this behalf is the one contained in Clause 5(3)(ii) of the Imports (Control) Order. Sub-clause (1) of Clause 5 specifies conditions which can be attached to an import licence at the time of its grant. Sub-clause (2) says that a licence granted under the Order shall be subject to the conditions specified in Fifth Schedule to the Order. Sub-clause (3) sets out three other conditions mentioned as (i), (ii), (iii) which shall attach to every import licence granted under the Order. First of these conditions says that the import licence shall be non-transferable except under the written permission of the Licensing Authority or other competent Authority. Condition (ii) which is the provision relevant herein says that the goods for the import of which a license is granted "shall be the property of the licences at the time of import and thereafter upto the time of clearance through customs". This condition, however, does not apply to STC, MMTC and other similar institutions entrusted with canalisation of imports. It also does not apply to certain eligible expert houses, trading houses and public sector agencies mentioned in the Second proviso. Condition (iii) says that the goods for which the import licence is granted shall be new goods unless otherwise mentioned in the licence. Now coming back to the Condition (ii), the question is what does it mean and what is the object underlying it when it says that the imported goods shall be the property of the licensee from the time of import till they are cleared through customs. It is necessary to notice the language of the sub-clause. It says "it shall be deemed to be a condition of every such licence that the goods for the import of which a licence is granted shall be the property of the licensee at the time of import and thereafter upto the time of clearance through Customs". The Rule-making authority (Central Government), which issued the order, must be presumed to be aware of the fact that in many cases, the importer is not the owner of the goods imported at the time of their import and that he becomes their owner only at a later stage i.e. when he pays for and obtains the relevant documents. Why did the Central Government yet declare that such goods shall be the property of the licensee from the time of import? For appreciating this, one has to ascertain the object underlying the said provision. The interpretation to be placed upon the provision should be consistent with and should be designed to achieve such object. In this context, it should also be remembered that expressions like property of' and Vest' do not have a single universal meaning. Their content varies with the context. The aphorism that a word is not a crystal and it takes its colour from the context is no less true in the case of these words. In our opinion the object underlying condition (ii) in Clause 5(3) is to ensure a proper implementation of the Imports (Control) Order and the Imports and Exports (Control) Act, 1947. The idea is to hold the licensee responsible for anything and everything that happens from the time of import till they are cleared through Customs. The exporter is outside the country, while the importer, i.e. the licensee is in India. It is at the instance of the licensee that the goods are imported into this country. Whether or not he is the owner of such goods in law, the Imports (Control) Order creates a fiction that he shall be deemed to be the owner of such goods from the time of their import till they are cleared through Customs. This fiction is created for the proper and effective implementation of the said order and the Imports & Exports (Control) Act."
(2.) Under such circumstances, I do believe that this is a fit case for appeal before CEGAT and there is no necessary for giving further directions for filing affidavit and delay the proceedings. CEGAT, Eastern Bench will consider the appeal in the light of the judgment and order delivered by this Court. Since the respondents contended before this Court that it is for Appellate Authority to consider this case, if any appeal is preferred the same will not be treated as barred by limitation or res judicata or principles analogous thereto. CEGAT, Eastern Bench will not delay for further notices and proceedings, if any, in respect of the importer or other parties. GEGAT, Eastern Bench will proceed only on the point as to whether the petitioner is the owner of the goods and the goods are entitled to be re-exported.
(3.) The appeal will be preferred by the petitioner within a period of 7 (seven) days from the date of communication of this order and if it is filed, it will be decided by the CEGAT, Eastern Bench within a period of one month from the date of filing of the appeal.;