Hazari, J. - (1.) This is an application filed by Park Knives Pvt. Ltd. and Vipon Gupta, inter alia, praying for an order that - (a) Writ of and/or order and/or direction in the nature of Mandamus be issued commanding the respondents to forthwith allow your petitioners to re-export the goods arrived in Vessel M.V. Lhotse on Voyage No. 405 dated 28th July, 1991 in respect whereof Bill of Entry No. 1549 dated 31-7-1991 has been filed by the petitioners; (b) A writ of and/or order and/or direction in the nature of Prohibition be issued prohibiting and restraining the respondents, their servants, agents and/or assignees from refusing to allow the petitioner to re-export the goods arrived at Calcutta in Vessel M.V. Lhotse being Voyage No. 405 dated 28th July, 1991 in respect whereof Bill of Entry No. 1549 dated 31-7-1991 has been filed by the petitioners and detaining the same and/or initiating any proceedings in connection therewith and/or concerning the same against the petitioners, and for other reliefs.
(2.) The petitioners' case is that the petitioner No. 2 Vipon Gupta is a shareholder and director of the petitioner No. 1 Park Knives Pvt. Ltd. The petitioner on 27-11-1990 booked an order with a foreign seller for the supply of materials as specifically mentioned therein with exact sizes and specifications of the goods required. Pursuant to the said order the foreign seller despatched the goods in Vessel "Pacific Arrow" which was subsequently transhipped to Vessel "M.V. Lhotse" and the cargo arrived at the port of Calcutta on 28th July, 1991. The foreign seller submitted two proforma invoices from Tokyo on 13th December, 1990 and in the said invoices the goods were described as "Veneer Peeling Knives Blanks". The regional Development Commissioner for Iron & Steel refused to accept the said two proforma invoices on the ground that the description of item of import was not specific. Thereafter on 14th December, 1990 the foreign seller submitted revised proforma invoices describing the goods as Cladded Steel Blanks rolled for manufacturing of industrial cutters for peeling and a certificate to that effect. On 31st July, 1991 the petitioners filed the bill of entry with the Calcutta Customs Authorities for the clearance of the goods. The petitioners described the goods in the bill of entry according to the specification mentioned in the said proforma invoices. Thereafter the petitioners received a summons under Section 108 of the Customs Act issued by the respondent No. 3, Appraiser, Special Investigation Branch, Collector of Customs, Calcutta, asking the petitioners to appear before him on 8-8-1991 with all correspondence and documents relating to the import. Thereafter the petitioners appeared before the Customs Authorities and the petitioners' statements were recorded. On 6-9-1991 the Customs Authorities in presence of Group Appraiser and Dock Appraiser checked the goods and it transpired that the goods which had arrived at the port of Calcutta in the name of the petitioners do not tally with the goods ordered for by the petitioners but is of a bigger size. Petitioners' further case is that the petitioners were shocked and surprised to notice the deviation between the goods ordered and the goods supplied and complained to the foreign seller by a telex dated 14th September, 1991. The foreign seller in their turn admitted their mistake and offered to take back the goods. The further case of the petitioners is that the petitioners were not at fault and they have acted bonafide and it was the mistake of the foreign seller so far as the size is concerned. The foreign seller having admitted their mistake and having agreed to take back the goods, the petitioners approached the customs authorities and requested permission from them to re-export the goods as the petitioners could not obtain refund from the foreign seller unless the goods which have come contrary to the specification and sizes as mentioned in the order are returned back to them. The customs authorities did not allow the petitioners to re-export the goods. On 1-10-1991 the present writ application was moved. On 3-10-4991 the customs authorities served a show cause notice on the petitioners and the hearing of the show cause notice was ultimately fixed on 3-1-1992.
(3.) The respondent filed on affidavit-in-opposition through Samir Ranjan Dutt, Assistant Collector of Customs, Special Investigation Branch, Calcutta. The respondent's case is that the declared Unit price (CIF) in respect of the goods in Japanese Yen 16,900 per piece. The declared size of the goods were 2722 x 169 x 14 mm, which on examination by the Department in presence of the petitioner was found to be 2850 x 181 x 17.1 mm. Though there was a difference in the size, the declared weight tallied with the weight of the goods. It was ascertained by the Department that the value per piece would be Japanese Yen 38,500 and the differential duty comes to Rs. 4,74,661.92p. on the entire consignment.;