ORDER
Lajja Ram, Member (T)
1. The import of woollen/synthetic rags was permissible under OGL vide Appendix 6, list 8, part-I, SI. No 626 of AM 1988– 91 policy. On 28.4.1989, the Ministry of Commerce, vide Public Notice No. 122-ITC (PN) 1988–91, restricted the import of woollen/synthetic rags only through he Ports of Bombay and Delhi. Customs House, Calcutta issued a Public Notice on 16.6.1989 to the effect that the import of woollen/synthetic rags would be allowed to be cleared to Calcutta Port subject to the following conditions:
(1) The import contract had been made prior to the issue of the ITC Public Notice dated 28.4.1989.
(2) The shipment has been effected within 60 days from the date of issue of the ITC Public Notice dated 28.4.1989 i.e.upto 27.6.1989.
2. M/s. Oswal Spinning and Weaving Mills Ltd. imported 38 bales containing 20,000 kgs. of synthetic rags, valued at Rs. 175,715/- CIF. The consignment had been shipped to Calcutta Port on 29.6.1989, that is two days after the 60 days’ grace period allowed to the importers vide Calcutta Customs House Public Notice dated 16.6.1989, although the importation was covered by a contract/indent dated 152.1989, entered prior to the ITC Public Notice dated 28.4.1989.
3. The Additional Collector of Customs, Calcutta, under his Order-in -Original dated 6.9.1989 confiscated the goods but ordered release of the goods on payment of a redemption fine of Rs. 18,000/-.
4. In appeal, the appellants had submitted that the goods in question were shipped on 22.6.1989, within the time limit fixed by the Calcutta Customs House Public Notice. It was also stated that the 60 days grace period should be counted from the date the public notice was made available to the public
5. A point was also made that the Ministry of Commerce public Notice dated 28.4.1989, was contrary to the provisions of the Customs Act, 1962, and that in the absence of any Notification under Section 7 of the Customs Act, 1962, the import of the consignment at Calcutta port was in accordance with law.
6. The appellants requested for hearing at Delhi in the North Regional Bench. Under CEGAT Order No. 137/83 with Amendment No. 1/1987 dated 23.1.1987, the request for transfer to N.RB.was allowed vide Misc/138-139/90-NRB, dated 255.1990.
7. The case was posted for hearing on 21.6.1993 when Shri Hari Om Arora, Advocate appeared for the appellant and Shri V.K. Sharma, SDR for the respondent.
8. Shri Hari Om Arora, the learned Advocate referred to the Order-in-Original and submitted that there was no delay in the shipment of the goods.
9. The learned Advocate referred to the Supreme Court decision in the case of Akbar Badrvddin Jiwani v. Collector of Customs , and submitted that the burden of proof was on the department to show that the importer had acted dishonestly or contumaciously or with the deliberate or distinct object of breaching the law, to sustain the charge of illegal import.
10. At the most, it could be said that there was delay of only two days, and that too if counted from the date of the Calcutta Customs Public Notice. He submitted that as the Public Notice was not made available to the public on the same day, this two days delay should be condoned. He also referred to the Madras High Court decision in the case of P.S. Tandon v. Union of India, wherein it has been held that the order restricting the import of woollen rags only through Bombay and Delhi ports was discriminatory and non-sustainable In para 6 of their judgment the Madras High Court held as under–
Since the import of mutilated rags is permissible under Open General Licence and so the fundamental right to carry on trade, business and occupation is available to the petitioner, if his trade is in any manner interfered with by imposition of restrictions, such restrictions must stand the test of Articles 14 and 19(6) of the Constitution of India. It is not the case that the petitioner has committed violation of the import regulations. Merely because some unscrupulous imports under the guise of mutilated rags, it would not enable the respondents to impose a restriction, which is not warranted. The respondents have enough machinery resources, and manpower to devise ways and means of checking of import of any unauthorised item. When the respondents have provided such facilities in Bombay and Delhi, nothing prevented them from providing similar facilities in the recognised Ports like Madras and Tuticorin when it is the case of the petitioner that he would be put to grave and irreparable loss if he is compelled to import the raw materials through Bombay and Delhi, the respondents can question their order only if they could give a rationale and reasonable explanation as to why the ports at Bombay and Delhi alone could be given special status. It is not as if the Madras has not been a recognised port. It is a fact which this Court can take judicial notice of that the port in Madras is as much equipped as any other port in the country, in the matter of handling of cargoes. When such is the position, merely because the respondents are not willing to provide the facilities upto Madras and Tuticorin for construction of the consignment or to ensure mutilation before allowing clearance to the importers, the citizens cannot be put to unreasonable actritions (sic), therefore, there will be writ as prayed for.
11. Shri V.K. Sharma, the learned SDR submitted that the appellants had not complied with the contents of the Public Notice and thus the order of the Additional Collector regarding confiscation of the imported goods was in order.
12. I have carefully gone through the facts and circumstances of the case and the submissions made on both the sides.
13. I find that the order was placed by the importer on 15.2.1989. The invoice was prepared on 22.6.1989. The packing list, certificate of Sea Worthy Packing and the in surance cover, are all dated 22.6.1989. The goods were put on board on 22.6.1989 as per the endorsement on the bill of lading. Thus all the required formalities regarding the shipment had been complied within 60 days from the date of the issue of the ITC Public Notice on 28.4.1989. It is also pertinent to note that although ITC Public Notice was issued on 28.4.1989, the Calcutta Customs House issued Public Notice only on 16.6.1989, after more than 11/2 months from the date of the ITC Public Notice.
14. The Additional Collector, Customs, Calcutta had gone by the date of the bill of lading which had been issued on 29.6.1989 at Chicago. As all the formalities regarding the shipment of the goods had been completed within the stipulated period and there was a delay of 2 days only in the preparation of the bill of lading, I consider that the order of the confiscation by the Additional Collector, Customs, in the circumstances of the case, was not justified.
15. Accordingly, I vacate the impugned order and accept the appeal with -.onsequential relief to the appellants, if any.