Bhagabati Prasad Banerjee, J. - (1.) This writ petition was moved with notice to the respondents against the refusal of the Customs Authorities to clear the imported white cement in contemplation of an adjudication proceeding. The said refusal to clear the said goods was endorsed in the body of the original bill of entry which is Annexure 'D' to the writ petition. In the instant case, the petitioner imported two consignments of white cement under O.G.L. and that the petitioner on arrival of the goods from Yugoslavia filed two separate bills of entry being No. 1665 and 1666 both dated 28, 1984 for home consumption for clearance of the said goods. The said bills of entry were duly processed by the Customs Authorities and assessed customs duty to the extent of Rs. l,83,000/-which was duly paid by the petitioner. Thereafter on the Bill of Entry, the Customs Authorities passed an order on January 1, 1985 and made the following endorsement : "Goods are allowed to warehoused Under Section 49 C.A. 1962. No clearance to be allowed. Adjudication proceeding will follow." At the time, the petitioner was verbally informed that the said white cement could not be released as the same was a canalised item under Item 8, Part B of Appendix 5 of the Export Import Policy for the year 1984-85. Thereafter the adjudication proceeding was started and by the show cause notice dated January 28, 1985, the Assistant Collector of Customs directed the petitioner to show cause why the said imported goods should not be confiscated under Section 111 of the Customs Act, 1962 and why penalty should not be imposed upon the petitioner under Section 112 of the Customs Act, 1962. The said show cause notice was issued on the basis of a chemical test of the sample wherein it was found that the white powder have the characteristic of ordinary portland cement. At that stage, the petitioner moved this Court a writ application with notice to the respondents and after hearing the parties, by the order, dated January 25, 1985, I directed the writ application to appear as an application on February 6, 1985 and in the meantime the respondents were given liberty to initiate and/or complete any proceeding for adjudication, if any, in the matter in dispute upon notice to the petitioners. It appears that on February 6, 1985, the matter came up for orders when learned Advocates for both the parties agreed that the matter should be disposed of as specially fixed application on February 7, 1985. It appears that in the meantime Shri S. Mukhopadhyaya, the Collector of Customs passed an order on February I, 19&5 concluding the said adjudication proceeding in terms of the liberty given by this Court in which the said Collector of Customs held that white cement which was imported by the petitioner, was nothing but the ordinary portland cement and as according to Appendix 5, Part B, Sl. No. 8 of Import Trade Control Policy of 1984-85, cement including clincker is canalised item and that the import of the said goods was only allowed to be made by the State Trading Corporation of India under O.G.L. According to the Collector of Customs, the importation of white cement which was nothing but portland cement and that the said importation by the petitioner was wholly unauthorised. According to the Collector of Customs the said imported goods were liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Import and Export Control Act, 1947. The Collector of Customs instead of confiscation of the goods gave an option to the petitioner to redeem the goods under Section 125 of the Customs Act, 1962 on payment of fine of Rs. 6,50,000/-and a penalty of Rs. 1,10,000/-.2- Mr. Bhaskar Prasad Gupta, learned Advocate appearing on behalf of the petitioner, contended that white cement is a commodity different from ordinary portland cement and in support of his contention, relied on the provision of paragraph 2(a) of the Imported Cement (Control) Order, 1978 which defines 'cement' means any variety of cement imported into India but does not include oil-well cement and white cement and coloured cement other than grey portland cement. The said Import Cement (Control) Order, 1978 was issued by the Central Government in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955. Mr. Gupta also relied on the Booklet issued by the Indian Standard Institution under the name and style "Indian Standard Specification for White Portland Cement". In the foreword of the said Booklet it was provided that - "White Portland Cement is generally meant for non-structural use. White Portland Cement is made from raw materials containing very little iron exide and manganese exide. Limited quantities of certain chemicals, which will improve whiteness of cement without affecting the physical properties, may be added during manufacture... Portland cement except that maximum iron exide content is 1.0 per cent, and requirement for loss on ignition has been deleted. Further the strength requirements of white Portland Cement are specified as not less than ninety per cent of these or ordinary Portland Cement."
(2.) The said booklet contains various information regarding the terminology, manufacturing process, chemical requirements, physical requirements, etc., of white Portland cement. Mr. Gupta also relied on the booklet issued by the Indian Standard Institution under the name and style "Indian Standard Specification for Ordinary and Low Heat Portland Cement" which also provides the terminology, manufacturing process, chemical requirements, physical requirements etc. of ordinary portland cement. From the Booklets it is also made abundantly clear that the chemical requirements of white portland cement and ordinary and oil heat portland cement are quite distinct and separate. The chemical requirements for ordinary portland cement is enumerated in Table I of the said Booklet. From this it is abundantly clear that even on chemical analysis the said two commodities are quite distinct and separate. Mr. Gupta also relied on the Press Note issued by the Government of India, Ministry of Industries, dated February 27, 1982 in support of his contention that the white cement and ordinary port-land cement are two different commodities. A copy of the said Press Note is Annexure "E" to the writ petition wherein the Government of India, Ministry of Industries, Department of Industries Development used the expression "ordinary portland cement" The said Press Note also provides that in order to meet the deficit of such type of cement, the State Trading Corporation shall be freely allowed to import cement on its own account or on the account of the actual users. The said Press Note was also relied upon by Mr. Gupta in support of his contention that the ordinary portland cement have only been made a canalised item and that the ordinary portland cement could only be imported by the Slate Trading Corporation and that the said Press Note made it abundantly clear that white portland cement were left outside the purview of such restriction of importation through the State Trading Corporation. Mr. Gupta further contended that when the Indian Standard Institution which is the highest authority in the matter treated ordinary portland cement and white cement are two different and distinct commodity and had in their publication set out the chemical analysis of the ordinary portland cement it was no longer open on the part of the Collector of Customs to rely on any other chemical test behind the back and without the knowledge of the petitioner for holding that the sample were found to be white powder having characteristic of portland cement. Such chemical analysis the particulars of which are not disclosed also do not support to the contention that the two commodities are same commodities particularly when the said booklet issued by the Indian Standard Institution analysed separately two chemical composition of two different commodities. It was further stated that the said determination made by the Indian Standard Institution with regard to the chemical analysis and physical requirements of the two types of commodities were binding upon the Collector of Customs. Further the Collector of Customs at its sweet will, cannot ignore the definition of cement given in the Imported Cement (Control) Order, 1978 which made it abundantly clear that the Central Government treated for all practical purposes ordinary portland cement and white cement as two different commercial commodities even under the law. According to Mr. Gupta, the Collector of Customs had acted arbitrarily, unjustly and whimsically in not relying upon the definition of cement in the said control order which was binding all force upon the Collector of Customs. The Collector of Customs had no authority and/or jurisdiction to override the statutory definition given to a particular commodity at his whims and caprice.
(3.) Mr. Gupta further contended that the Collector of Customs in the matter proceeded from the very beginning with a closed and biased mind and that as the matter was pending before this Court and the Collector was a party to it and the Collector of Customs from the beginning was contending that the white cement and the ordinary cement was same commodity. The Collector of Customs could not bring an impartial mind to bear in the matter and that the fact that when the Collector was very much biased, was made abundantly clear by imposition of fine of Rs. 6,50,000/- and a penalty of Rs. 1,10,000/- without any rhime and reason. Further the Collector of Customs did not take into account of a sum of Rs. 1,83,000/- realised by the Customs Authorities as Customs duty and it was contended by Mr. Gupta that the respondents are estopped from refusing to release the goods after they had realised Custom duty.;