ORDER
S. Ramalingam, J.
1. This Writ Petition coming on for orders as to admission on this day upon perusing the petition and the affidavit filed in support thereof and the counter-affidavit filed herein and upon hearing the arguments of Mr. S. Thiagarajan for M/s. T. Muthuraman and A. K. Jayaraj Advocates for the petitioner, and of Mr. P. Narasimhan, Senior Central Government Standing Counsel, on behalf of the respondents Nos. 1 to 3 and Mr. N. Jothi, Additional Central Government Standing Counsel on behalf of the fourth respondent the court made the following order :-
The petitioner imported by Air 120 packages of Intensive Care Respirator System with accessories from Sweden. This is a life saving device and is an OGL item. Under Notification No. 208, Customs dated 22-9-1981, the import of this item is duty free. The petitioner wanted to export this item so imported by it to a purchaser in Moscow and made necessary financial arrangements. According to the petitioner, this sale would result in a net foreign exchange earning of Rs. 32,00,000/- to this country. The petitioner presented the shipping bills before the customs authorities for effecting shipment of this item. But, the customs authorities refused to make the necessary endorsement that will enable the petitioner to ship the consignment. The customs authorities were of the opinion that the export of this item is not permitted under law. It is in these circumstances, the petitioner has sought relief in this writ petition for the issue of a mandamus to direct the respondents to permit the export of the subject goods by making necessary endorsements in the shipping bill No. 0523 dated 2-2-1990. Originally, the Union of India, represented by the Secretary, Ministry of Finance, New Delhi; the Collector of Customs, Customs House, Madras 1; and the Assistant Collector of Customs (Exports) Customs House, Madras 1 were impleaded as party respondents. Subsequently, by orders dated 13-2-1990, made in W.M.P. No. 2479 of 1990, the Joint Chief Controller of Imports and Exports, Peters Road, Madras 14 was also impleaded as a respondent.
2. In view of the urgency, the petitioner was permitted to serve the respondents privately, in response to which Mr. P. Narasimhan, Senior Central Government Standing Counsel, appears for respondents 1 to 3 and Mr. N. Jothi, Additional Central Government Standing Counsel, appears for the fourth respondent.
3. The contention of the petitioner is that under the provisions of the Exports (Control) Order, the subject goods can be freely exported to any country and the refusal of the respondents to allow such export is not correct.
4. Mr. P. Narasimhan, learned counsel appearing for respondents 1 to 3, stated that when the Collector of Customs had a doubt, he sought a clarification from the Joint Chief Controller of Imports & Exports and the Collector of Customs was informed that the export of this item should not be permitted and being placed in such a position, respondents 2 and 3 had no option but to refuse to make an endorsement in the shipping bill. Mr. N. Jothi learned counsel appearing for the fourth respondent, would submit that the petitioner was allowed to import this item from foreign countries by availing the benefit of the Exemption Notification No. 208-Customs, dated 22-9-1981, and, therefore, the petitioner should not be given double benefit by exporting this item to a foreign country. But, the Exemption Notification No. 208-Customs, dated 22-9-1981 does not state that the goods imported by availing the benefit of that notification should be consumed or used or utilised within India and should not be exported. Therefore, merely because the petitioner had the benefit of exemption under Notification No. 208-Customs, dated 22-9-1981 from paying customs duty, that would not disable the petitioner, if it is not otherwise prohibited by law, from exporting the consignment in question.
5. Secondly, learned counsel for the fourth respondent would submit that the subject item imported into India had been cleared under a Bill described as a Bill of Entry for home consumption and, therefore, the consignment so cleared should be used only within the territory of India for home consumption. Learned counsel for the petitioner, however, would submit that the description in the Bill of Entry that it is for home consumption is only description and not a restriction imposed in respect of the manner in which the consignment imported should be used or utilised. Both sides agree that there are only three categories of Bills of Entry called Bill of Entry for Home Consumption, Bill of Entry for Warehousing and Bill of Entry for Debonding. Therefore, the position is clear that whenever goods are imported into India for purposes other than warehousing or debonding, the relevant Bill of Entry would always be called a Bill of Entry for Home Consumption. Therefore, it is obvious that there is no restriction on the manner in which the goods imported should be used or utilised. None of the clauses contained in the Bill of Entry or the Import Regulations sets out any restriction or prohibited for export of the item in question.
6. The Exports (Control) Order was made with the object to promote export to the maximum extent, but in such a manner that the economy of the country is not affected by unregulated exports of the items essentially needed within the country. Learned counsel for the petitioner as well as the learned counsel for the fourth respondent would rely on paragraph 2 of the Exports (Control) Order and use the same in support of their respective submissions. While the learned counsel for the petitioner would state that export is permitted unless it is prohibited or regulated in a manner known to law, learned counsel for the fourth respondent would state that the petitioner cannot export this item because this item is essentially needed within the country. It may be true that this item is essentially needed within the country. But, having regard to this fact, the Government should have made certain regulations restricting the export of such items. The constitutional guarantee under Article 19 of the Constitution of India would protect the trading by way of export, the export of items which are not prohibited. In paragraph 4 of the Exports (Control) Order, it is clearly set out as follows :
“Only items included in Schedule I to the Exports (Control) Order, 1988 are under control. No such item can be exported unless it is covered by a valid licence issued by a licensing authority competent to grant an export licence for that time. Goods which are not included in this Schedule can be shipped without any export licence unless their export is controlled under any other law for the time being in force…”
The laws which regulate the export of certain commodities are contained in the Antiquities and Art Treasures Act, Indian Coffee Act, Tea Act, Foreign Exchange Regulation Act, etc. The fourth respondent was at pains to find out whether this item, Intensive Care Respirator System, would come under any of the appendices 1 to 6 of Schedule I but he was not able to find a corresponding entry. He is also not able to place before this Court any law expressly made prohibiting the export of this item. Therefore, it would follow that this item, which has not been included in Schedule I and which is not prohibited under any law from being exported, can be shipped without any export licences freely by a person in India. The shipping bill filed by the petitioner should have been duly endorsed by the customs authorities and there was absolutely no justification for the delay. The petitioner is entitled to the relief as prayed for and the writ petition is allowed. However, there will be no order as to costs.