{"id":141347,"date":"1998-10-09T00:00:00","date_gmt":"1998-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bin-sabt-jewellery-llc-dubai-uae-vs-commission-of-income-tax-ors-on-9-october-1998"},"modified":"2016-11-18T03:23:56","modified_gmt":"2016-11-17T21:53:56","slug":"bin-sabt-jewellery-llc-dubai-uae-vs-commission-of-income-tax-ors-on-9-october-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bin-sabt-jewellery-llc-dubai-uae-vs-commission-of-income-tax-ors-on-9-october-1998","title":{"rendered":"Bin Sabt Jewellery Llc Dubai (Uae) vs Commission Of Income-Tax & Ors. on 9 October, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Bin Sabt Jewellery Llc Dubai (Uae) vs Commission Of Income-Tax & Ors. on 9 October, 1998<\/div>\n
Equivalent citations: 1998 VIAD Delhi 628, 76 (1998) DLT 161<\/div>\n
Author: R Lahoti<\/div>\n
Bench: R Lahoti, C Mahajan<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 R.C. Lahoti, J. <\/p>\n
 1.     The  petitioner is a bullion dealer in Dubai and a major  exporter  of bullion to India. In July, 1998 the petitioner received an order for supply of  gold  from  Shri Ganesh Exports, New Delhi. Pursuant to  the  order  so received, the petitioner despatched a consignment consisting of 200 TT bars of  gold. The documents were forwarded to the Punjab National  Bank,  Okhla Indl.  Estate,  New Delhi instructing the bankers to retire  the  documents against cash. The consignment having reached New Delhi Air Cargo Complex by Air India flight on 24.7.98, the customs authorities got suspicious because the telephone numbers of the bank as well as those of the notified consignee  as  entered  on the airway bill were of 6 digits.  Enquiries  from  the Mahanagar  Telephone Nigam Ltd. confirmed that the said  telephone  numbers
\nwere not in existence in any location of Delhi. The notified consignee  was not found at the given address. The bankers were also not in a position  to identify or provide the whereabouts of the consignee.\n<\/p>\n
 2.   The  Dubai  exporter apprehended as having been duped  by  someone  in sending  the consignment. It instructed M\/s.M.D.Overseas Ltd. of  Connaught Circus,  New Delhi to have the goods cleared to itself.  Instructions  were issued  by  the  exporter to the bankers to retire the  documents  on  cash against delivery in favour of M\/s.M.D. Overseas who were also requested  to file  the bill of entry and lift the consignment. The  customs  authorities summoned  Shri Satish Bansal of M\/s.M.D.Overseas under Section 108  of  the
\nCustoms Act. Shri Satish Bansal stated that he was claiming consignment  by way  filing the bill of entry at the request of the supplier with  whom  he had  regular  and longstanding business relations and who had sent  him  an amended invoice pertaining to the said consignment alongwith a request  for amendment  of the airway bill and a letter stating that the  original  consignee was not taking delivery of the gold.\n<\/p>\n
 3.   The  custom authorities have seized the gold forming a reason  to  believe  that the gold having been imported in the name of a  fictitious  importer  was  liable to be confiscated under Section 111(m) of  the  Customs Act, 1962.\n<\/p>\n
 4.   M\/s.M.D.Overseas  Ltd. made a request on 4.8.98 followed by a  request from  the  petitioner on 7.8.98 to the customs authorities that  the  goods lying  uncleared may either be released to M\/s.M.D.Overseas Ltd. or be  reexported  back to Dubai. As none of the two prayers has been acceded to  by the  customs  authorities, the present petition has been filed  on  17.8.98 seeking  a writ of mandamus to the respondents to permit clearance  of  the goods covered by airway bill No.098-7310-1044 and re-export the same to  the country  of  origin  i.e. Dubai or to permit resale of the  goods  to  some
\nconsignee.\n<\/p>\n
 5.   Shri  Pradeep Jain, the learned counsel for the petitioner has  placed implicit and forceful reliance on the law laid down by the Supreme Court in Union of India Vs. Sampat Raj Dugar .\n<\/p>\n
 6.   Shri  Jayant  Bhushan,  the learned counsel for  the  respondents  has opposed the petition supporting the counter filed on behalf of the respondents. He has referred to the definition of terms ‘import’ and ‘importer’ as defined in clauses (23) and (26) of Section 2 of the Customs Act.  ‘Import’ is brining into India from a place outside India. ‘Importer’ in relation to any goods at any time between their importation and the time when they  are cleared  for  home  consumption includes any owner or  any  person  holding himself  out to be the importer. under Clause (d) of Section 111 any  goods imported or attempted to be imported contrary to any prohibition and  under clause (m) any goods which do not correspondence in respect of value or any other  particular with the entry made under the Customs Act are  liable  to confiscation.\n<\/p>\n
 7.   Shri  Jayant  Bhushan also referred to Export and  Import  Policy  1st April, 1997 to 31st March, 2002 whereunder gold can be imported subject  to special import license for gold. Accordingly, the learned counsel submitted that the exporter should have taken care to verify that the importers  i.e. Shri Ganesh Exports had a valid license with them before placing the  order for the import and then only should have exported the gold to India. In  as much as the particulars as to the importer, as given in the airway bill are found  to be incorrect, the same being a non-existent person and  therefore
\ncertainly not having an import license, the goods are liable to be  confiscated and hence have been validly seized. In any case the investigation  is on and this Court would not exercise its writ jurisdiction so as to  intermeddle with the statutory investigation and release the seized goods unless it  be  satisfied that the seizure was without jurisdiction  or  apparently unjustified.\n<\/p>\n
 8.   The learned counsel for the petitioner has on the other hand submitted that  special import license for gold is a freely transferable license;  it need  not  be in the name of a particular individual. The  consignment  was “cash  against delivery”. The exporter was not necessarily called  upon  to enquire  about  the  availability of a valid license in the  hands  of  the importer while honouring the import order received by it and it was  enough if  the  consignment was `cash against delivery’  which  would  essentially require production of valid import license by the consignee while  retiring
\nthe  documents and submitting the bill of entry for clearance of  the  consignment. He also submitted that the petitioner-exporter which is a reputed bullion  exporter  having been duped or fallen prey to  fortuitous  circumstances  and  exported the gold to India should not be made  to  suffer  by incurring  demurrage which is mounting de diem. The petitioner  could  find out  another dealer in India holding a valid license in his hands and  prepared to retire the documents by `cash against delivery’ and submitting the bill  of entry. He was forced to withdraw the bill of entry in view of  the customs officials having roped him also in the investigation. The title  of the  goods is still with the exporter and hence re-export to itself  should not  be  denied which can be done without violating the  law.  The  learned counsel also submitted that the petitioner was agreeable to furnish a  bank guarantee in an amount corresponding to the value of the consignment  which would  protect the interest of the revenue in the event of the goods  ultimately being held liable to confiscation but that would relieve the exporter from being saddled with demurrage multiplying every day and which may on
\naccount of delay assume a disproportionate dimension.\n<\/p>\n
 9.   In  Sampat  Raj Dugar’s case (supra), ‘I’, an importer  in  India  was having an import license of raw-silk which was granted subject to a  condition  which was later on found to have been not fulfillled by her.  ‘E’,  an Indian  national resident at Hong Kong and doing business  there,  exported raw-silk  to ‘I’ and sent the requisite documents to the bankers  with  instructions to deliver the same to ‘I’ on receiving the payment. I failed to make the payment and receive the documents. ‘E’ submitted that he was not a party  to  the  misuse of earlier imports by ‘I’ nor was he  aware  of  the
\nalleged fraud practised by ‘I’ in obtaining the advance import license.  He requested  that  he may be permitted to re-export the said  goods  to  Hong Kong.  The permission to re-export was refused. ‘E’ filed a  writ  petition submitting  that he continued to be the owner of the goods which could  not be confiscated or proceeded against in any manner for any act or default of ‘I’. The Bombay High Court allowed the petition permitting re-export of the goods by ‘E’. The matter came up to the Supreme Court.\n<\/p>\n
 9.1  Their  Lordships  referred to the definition of ‘Importer’  in  Clause (26)  of  Section 2 of the Customs Act as also to clauses (d)  and  (o)  of Section 112. Relevant provisions of the Imports and Exports (Control)  Act, 1947 and Imports Control Order, 1954 were also referred. Vide para 19 their Lordships took up the question of title to the said goods for consideration
\nand  held that since ‘I’ did not pay for and receive the documents  of  the title she did not become the owner of the said goods, which meant that  ‘E’ continued  to be the owner. The definition of Importer in Section 2(26)  of the  Customs Act was not really relevant to the question of  title.   Their Lordships further held :-\n<\/p>\n
       “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  the
\n     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  and      Exports  (Control)  Act. The fiction however  cannot  be  carried      beyond that. It cannot be employed to attribute ownership of  the      imported  goods to the importer even in a case where he  abandons      them,  that  is,  in a situation where he does not  pay  for  and      receive  the documents of title. It may be that for such  act  of      abandonment,    action   may   be   taken   against    him    for      suspension\/cancellation  of license. May be, some other  proceedings  can also be taken against him. But certainly he  cannot  be      treated  as the owner of the goods even in such a  case.  Holding      otherwise would place the exporter in a very difficult  position;      he  loses  the goods without receiving the payment and  his  only      remedy is to sue the importer for the price of goods and for such      damage  as he may have suffered. This would not be  conducive  to      international trade. We can well imagine situations where for one      or other reason, an importer chooses or fails to pay for and take      delivery  of the imported goods. He just abandons them.  (We  may
\n     reiterate that we are speaking of a case where the import is  not      contrary  to law). It is only with such a situation that  we  are      concerned in this case and our decision is also confined only  to      such  a situation. Condition (ii) in sub-clause (3) of Clause  5,      in  our opinion, does not operate to deprive the exporter of  his
\n     title to said goods in such a situation.”\n<\/p><\/blockquote>\n
 10.  It is true that the above case of Sampat Raj Dugar (supra) was a  case where the import was not contrary to law. On the date of import, the  goods were  covered by a valid import license which was  subsequently  cancelled. However, still we are of the opinion that the law laid down by their  Lordships  is of immense utility in guiding the decision in the case  at  hand.The direction to issue detention certificate as given by Bombay High  Court was also maintained by Supreme Court.\n<\/p>\n
 11.  During the course of hearing, it was not disputed at the Bar that  the import  of  gold in India is not completely prohibited. It  is  permissible though under a special license and subject to payment of duty. However,  it was  also not disputed at the Bar that such license is freely  transferable and anyone having a license in hand can import the gold. During the  course of hearing, we have specifically asked the learned counsel for the respondents to show us any provision of law whereunder the customer was obliged to verify  the  availability and correctness of a license to import  the  gold
\nbefore accepting the order for supply of gold and dispatching the  consignment  to  India. No such provision has been brought to our notice.  In  the absence of any such provision having been brought to our notice, we  cannot prima facie find any fault with petitioner having exported the  consignment of gold to India. In as much as the documents relating to consignment  were to  be delivered by the bankers only on payment of cash, the title  in  the gold has continued to vest in the petitioner, the documents having not been taken delivery of by the consignee.\n<\/p>\n
 12.  The  petitioner is in Dubai. The importer is a fictitious  person  according to the respondents and is not traceable. The petitioner cannot even recover the price of gold.  The petitioner had arranged for another  trader
\nagreeable to take delivery of consignment and also having a license but  he has withdrawn feeling scarred. The title in the goods is with the petitioner. To this extent Sampatraj Dugar’s case has relevance and applicability.\n<\/p>\n
 13.  Reliance  on  clause(d) of Section 111 of the Customs Act  is  misconceived  in  as  much as it refers to the goods brought  within  the  Indian customs  waters which is not the case here. Reliance on Clause (m) is  also open to question in as much as the only thing that can be said is that  the name of the consignee is fictitious. We do not propose to express any final opinion thereon. The respondents are investigating the matter and we do not consider  it appropriate to scuttle the investigation just in  between.  At the worst it can be said that the gold may be held liable to be  confiscated. However, if the value of the gold is secured for being available to the respondents, there should be no objection to the gold being re-exported  at the instance of the petitioner who does have the title therein. That  would save the gold from amassing the unwarranted burden of demmurage.\n<\/p>\n
 14.  The petition is partly allowed and disposed of in terms of the following directions :-\n<\/p>\n
      (i)  The petitioner shall furnish a bank guarantee in  an  amount      equivalent  to the value of the gold in favour of the  respondent      No.1  undertaking  to pay the amount in the event of  gold  being      held  liable to be confiscated. The bank guarantee shall be  furnished  initially for a period of four months and kept  alive  by
\n     being  renewed from time to time in the event of  the  proceeding      before  the respondents not terminating within four  months  from      today.\n<\/p><\/blockquote>\n
      (ii) On such bank guarantee being furnished, the gold in question      shall be allowed to be re-exported to Dubai by the petitioner.  \n \n\n      (iii) The requisite detention certificate shall be issued by  the      respondents to the petitioner.  \n \n\n 15.  The petition stands disposed of accordingly. No order as to the costs. \n \n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Bin Sabt Jewellery Llc Dubai (Uae) vs Commission Of Income-Tax & Ors. on 9 October, 1998 Equivalent citations: 1998 VIAD Delhi 628, 76 (1998) DLT 161 Author: R Lahoti Bench: R Lahoti, C Mahajan ORDER R.C. Lahoti, J. 1. The petitioner is a bullion dealer in Dubai and a major exporter of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-141347","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nBin Sabt Jewellery Llc Dubai (Uae) vs Commission Of Income-Tax & Ors. on 9 October, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bin-sabt-jewellery-llc-dubai-uae-vs-commission-of-income-tax-ors-on-9-october-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bin Sabt Jewellery Llc Dubai (Uae) vs Commission Of Income-Tax & Ors. on 9 October, 1998 - 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