{"id":247948,"date":"1993-08-04T00:00:00","date_gmt":"1993-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balaji-international-vs-collector-of-customs-on-4-august-1993"},"modified":"2017-10-14T04:22:27","modified_gmt":"2017-10-13T22:52:27","slug":"balaji-international-vs-collector-of-customs-on-4-august-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balaji-international-vs-collector-of-customs-on-4-august-1993","title":{"rendered":"Balaji International vs Collector Of Customs on 4 August, 1993"},"content":{"rendered":"
Calcutta High Court<\/div>\n
Balaji International vs Collector Of Customs on 4 August, 1993<\/div>\n
Equivalent citations: 1994 (70) ELT 203 Cal<\/div>\n
Author: R Pal<\/div>\n
Bench: R Pal<\/div>\n

JUDGMENT<\/p>\n

Ruma Pal, J.\n<\/p>\n

1. This is an application, filed by the respondent No. 3, for
\nmodification of an order, passed by this Court on 30th June, 1993. The order
\nsought to be modified was passed at the suggestion of the parties and provided
\nfor release of the goods imported by the writ petitioners subject to the writ
\npetitioners making payment of the admitted Duty, further payment of 20% of
\nthe difference of Duty as provisionally fixed and the admitted Duty in cash and
\nexecuting a P.D. Bond in terms of the Provisional Assessment Rules. Upon
\ncompliance of these conditions the goods were to be released to the writ
\npetitioners within 72 hours. Directions were also given for participation in the
\nadjudication proceedings before the Customs Authorities.\n<\/p>\n

2. The goods in question were Fax Machines which had arrived at the
\nPort of Calcutta in July, 1992. On 12th August, 1992 the goods were seized
\nunder Section 110<\/a> of the Customs Act, 1962 (hereinafter referred to as ‘the said
\nAct’). It is undisputed that the writ petitioners prayed for warehousing of the
\ngoods pending investigation under Section 49<\/a> of the said Act, and this was
\npermitted. On 10th February, 1993 an order was issued by the Customs
\nAuthorities under Section 110(2)<\/a> of the said Act. By this order the time to issue
\na Show Cause Notice under Section 124<\/a> of the said Act was extended for a
\nperiod of 6 months. The order under Section 110(2)<\/a> of the said Act was received
\nby the writ petitioners on 15th February, 1993. The writ petitioners made a
\nrepresentation to the respondent-Authorities on 27th February, 1993 claiming
\nrelease of the goods in question seized under Section 110<\/a> of the said Act
\ninasmuch as the period of 6 months had expired from the date of the seizure.
\nThe writ petitioners also contended that no extension of time could be granted
\nfor the purpose of issuing a Show Cause Notice under Section 124<\/a> of the said
\nAct without giving the writ petitioners an opportunity of being heard. Reliance
\nwas placed by the writ petitioners on various judicial decisions both of the
\nSupreme Court and this Court. On 19th March, 1993 the writ petitioners’
\nrepresentation was heard. The writ petitioners submitted a written submission
\nboth on that date as well as on 10th April, 1993. The written submission
\nreiterated the stand taken by the writ petitioners earlier in their representation
\ndated 27th February, 1993 more elaborately. On 6th May, 1993 the writ
\npetitioners wrote a letter to the Customs Authorities without prejudice to their
\nrights and contentions, praying for release of the imported goods upon the writ
\npetitioners paying the admitted Duty as well as depositing the difference in
\ncash between the demand as raised by the Customs Authorities and the Duty
\nclaimed as payable by the writ petitioners. It does not appear that any reply
\nwas given to this letter. The writ petitioners reiterated their offer by another
\nletter dated 20th May, 1993. This letter was also written without prejudice to the
\nwrit petitioners’ rights and contentions.\n<\/p>\n

3. In view of the inaction on the part of the respondent-Authorities in
\nreleasing the goods to the writ petitioners, the writ petitioners filed a writ
\napplication before this Court on 17th June, 1993 upon notice to the respondentAuthorities. In the writ petition the writ petitioners sought for release of the
\ngoods in question under Section 110(2)<\/a> of the said Act on the ground that there
\nhad been no valid extension of the period of 6 months provided under the
\nStatute for initiating proceedings under Section 124<\/a> of the said Act. On 17th
\nJune, 1993 the respondent-Authorities appeared and prayed for time to obtain
\ninstructions in the matter. The matter was accordingly adjourned till 22nd June,
\n1993. It may be noted that the entire purpose of giving notice to the Authorities
\nbefore an application is moved under Article 226<\/a> of the Constitution of India is
\nfor the Authorities to instruct their Counsel adequately before the matter is
\nheard by this Court. Nevertheless, the Court granted time to the respondents
\ntill 22nd June, 1993. On that date it was submitted on behalf of the respondent Authorities that they wished to file an affidavit in the matter. Directions were
\naccordingly given for filing of affidavits and the matter was adjourned till 30th
\nJune, 1993. It may be noted that no affidavit-in-opposition was filed by the
\nrespondent-Authorities on the date specified or at all. In the normal course,
\ntherefore, the Court would have proceeded on the basis of the uncontroverted
\nallegations of fact made in the writ petition.\n<\/p>\n

4. Be that as it may, the parties negotiated with each other and on 30th
\nJune, 1993 suggested the form of order which has been referred to above. The
\nrespondent-Authorities, therefore, had adequate opportunity to consider the
\nfacts of the case and to instruct their Counsel correctly as to the case of the writ
\npetitioners.\n<\/p>\n

5. After the order dated 30th June, 1993 was passed the writ petitioners
\napplied to the respondent-Authorities for the purpose of executing the necessary Bond. This was not made available to the writ petitioners. Ultimately, the
\nBond was made available to the writ petitioners through their Clearing Agent.
\nThe Bond was filled in and submitted. But the goods in question were, however, not released to the writ petitioners. An undated letter was made over to
\nthe writ petitioners by which the Customs Authorities have complained about
\nthe alleged defects in the Bond as submitted by the writ petitioners. The writ
\npetitioners were accordingly asked to re-submit the Bond duly executed. It is to
\nbe emphasized that even till this date there was no whisper of the order dated
\n30th June, 1993 not having been passed upon instructions properly given and
\nunderstood by the Counsel for the Customs Authorities. On 21st July, 1993 the
\nlearned Advocate for the writ petitioners served a Notice on the respondent-Authorities threatening them with proceedings in contempt for their non-compliance with the direction in the order dated 30th June, 1993. On 22nd July, 1993
\nthis application was made for modification of the order dated 30th June, 1993.\n<\/p>\n

6. The Customs Authorities have contended that in fact, the writ
\npetitioners had suppressed from this Court the fact that on 28th January, 1993
\nthe Collector had made provisional assessment and ordered release of the
\nimported goods subject to certain conditions which had been agreed to by the
\nwrit petitioners. It was further stated that the writ petitioners had suppressed
\nthe letters dated 6th May, 1993 and 20th May, 1993, written by them to the
\nCustoms Authorities, offering to deposit the entire cash amount which would
\nrepresent the difference in Duty between the Customs’ demand and the writ
\npetitioners’ declaration. It is stated that these letters were not drawn to the
\nattention of their learned Counsel before the order dated 30th June, 1993 was
\npassed.\n<\/p>\n

7. Secondly, it was stated that under Section 18<\/a> of the said Act, read
\nwith Clause 4 of the Customs (Provisional Duty and Assessment) Regulations,
\n1963, the deposit of 20% of the Duty claimed was merely to obtain provisional
\nassessment and that under Clause 4, the Collector had the power to direct
\nfurther deposit by way of security in addition to the deposit of 20% and
\nexecution of a Bond.\n<\/p>\n

8. Thirdly, it was stated that the Customs Authorities had recently come
\nto learn the fact which showed that the writ petitioner No. 1 was a front
\nCompany with no assets which were capable of meeting the demand of the
\nCustoms in the event the writ petitioners were ultimately unsuccessful in the
\nadjudication proceedings.\n<\/p>\n

9. Fourthly, it was stated that in any event the writ petitioners had no
\nright to the return of the goods in question assessed because, in fact, the seizure
\nhad been withdrawn when the writ petitioners were permitted to warehouse
\nthe goods under Section 49<\/a> of the said Act and that, as such, there was no
\nquestion of any time limit being placed on the right of the Customs Authorities
\nto issue a Notice under Section 124<\/a> of the said Act. It was further submitted that
\nin any event under Section 110(2)<\/a> of the said Act even if there was a subsisting
\nseizure, the writ petitioners would not be entitled to the return of the goods in
\nquestion because the Section provides for return of the goods to the person
\nfrom whom they were seized. In this case the writ petitioners were never in
\npossession of the goods in question and as such, could not claim that the goods
\nshould be returned to them.\n<\/p>\n

10. Finally, it was stated that the order dated 30th June, 1993 should be
\nmodified by allowing final adjudication to be made and directing release of the
\ngoods only subject to payment of the Duty as found.\n<\/p>\n

11. The writ petitioners have opposed this application and have stated
\nthat the order, sought to be modified, was, in fact, a consent order and could
\nnot be varied except by consent. The writ petitioners have relied upon several
\ndecisions in this regard including the decisions in the case of M.A. Cunningham
\nSircar v. Fred Stephens<\/a>, , and in the case of Rajunder
\nNarain Rao and Anr. v. Bijai Govind Singh, reported in 1837 (II) Moore’s Indian
\nAppeals, 181.\n<\/p>\n

12. Secondly, it is contended by the writ petitioners that there was, in
\nfact, a seizure all along and that this was borne out from the fact that the
\nCustoms Authorities had never at any stage of the proceeding either when the
\nwrit petitioners had made a representation on 27th February, 1993, or during
\nthe hearing on 19th March, 1993 or at any time subsequent thereto, contended
\nthat there was no seizure of any portion.\n<\/p>\n

13. According to the writ petitioner the seizure order was passed under
\nproviso of Section 110(1)<\/a> and was a prohibitory order which continued to
\nsubsist even when the goods were warehoused under Section 49<\/a> of the said
\nAct. As far as the letters dated 6th May, 1993 and 20th May, 1993 are concerned,
\nthe writ petitioners have submitted that the letters were written without
\nprejudice and in any event not accepted by the Customs Authorities and,
\ntherefore, the writ-petitioners were not bound by them.\n<\/p>\n

14. On the question of the order of the Collector dated 28th January,
\n1993 it is stated that the order was passed within the period of six months when
\nthe right of the writ petitioners under Section 110(2)<\/a> had not accrued to them.
\nOnce the right had accrued, the position which obtained when the order dated
\n28th January, 1993 was passed no longer existed. The writ-petitioners said that
\nthe respondent authorities were deliberately harassing the petitioners. The
\nmachines in question were electronic machines and had already remained in
\nthe warehouse for over 9 months. The petitioners have alleged that the previous consignment of the petitioners was cleared on 18th June, 1992, that is one
\nmonth prior to the consignment in question on the declared value.\n<\/p>\n

15. It is further submitted that the respondents authorities are in contempt of this Court as they have violated the order dated 30th June, 1993. It is
\nurged that the respondents authorities should not be heard unless they purge
\nthemselves of the contempt.\n<\/p>\n

16. Finally, it is submitted that Rule 4 of the 1963 Regulations did not
\namount to giving a power to the respondents authorities to require the deposit
\nof security over and above the 20% referred to in Regulation 1 and that the
\npower under Regulation 4 was restricted to the powers referred to in
\nRegulation 3.\n<\/p>\n

17. In my view the application of the respondents authorities is liable to
\nbe dismissed on the simple ground that the order dated 30th June, 1993 cannot
\nbe recalled in the facts and circumstances of the case. The order was passed
\nafter the Customs Authorities had every opportunity of going through the
\nrecords in instructing their Counsel. If they had not done so they cannot be
\npermitted to approach the Court and obtain relief on facts which should have
\nbeen known to them even when the writ application was moved on 17th June,
\n1993. The facts relating to the difference in duty, all appear from telex messages
\nreceived by the Customs Authorities in 1992 itself. They were, therefore, fully
\naware of the nature of the claim and the basis on which they were seeking to
\nraise a demand against the petitioner. There was no fact subsequent to the
\norder dated 30th June, 1993 which could warrant the Court in reviewing its
\norder dated 30th June, 1993. The only stand taken by the respondent authorities
\nis in paragraph 10 of the application where it is said that “the Customs
\nAuthorities recently come to learn the facts to which they reasonably apprehended that if the subject goods are released to the writ petitioners…the
\nGovernment revenue would be totally lost.” In that paragraph it has been
\nstated that the writ petitioner is a front company of one M\/s. Indian Telecom
\nLimited. No particulars have been given as to when the Customs Authorities
\ncame to learn these alleged facts and how they come to learn the facts. It is not
\nas if the petitioners had imported goods for the first time or that the respondents authorities had no way of knowing the solvency or background of the
\nwrit petitioner. The respondents had been dealing with the writ petitioners for
\nthe last 9 months. No document whatsoever has been annexed with the application in support of the so called ‘recent’ knowledge. The Court does not
\nfind this averment of the Customs Authorities acceptable. Furthermore, the
\norder was in fact passed by consent. It is not the Customs Authorities’ case that
\nthe consent was obtained by inducement on the part of the petitioners.\n<\/p>\n

18. From the facts of the case it appears that the Customs Authorities
\nwith their eyes wide open conducted this litigation. At the highest it may be
\nsaid that the officers of the Customs Department had been negligent in placing
\nthe relevant facts before their Counsel. To allow the order dated 30th June, 1993
\nto be recalled in such circumstances would be to place a premium on the
\nnegligence of the Government officers and to introduce an element of uncertainty in litigation which is concluded by consent of the Counsel who have
\nbeen duly appointed to conduct the matter.\n<\/p>\n

19. It is made clear that I do not consider it necessary to go into the
\nother points raised by the Customs Authorities or the writ petitioner but I have
\nrecorded the same for any further action.\n<\/p>\n

20. Accordingly, for the reasons stated the application is dismissed with
\ncosts.\n<\/p>\n

21. The assurance is given by the Counsel for the writ petitioners that
\nhe would not seek release of the goods pending disposal of the respondents’
\napplication for modification upto 6th August, 1993, is discharged.<\/p>\n","protected":false},"excerpt":{"rendered":"

Calcutta High Court Balaji International vs Collector Of Customs on 4 August, 1993 Equivalent citations: 1994 (70) ELT 203 Cal Author: R Pal Bench: R Pal JUDGMENT Ruma Pal, J. 1. This is an application, filed by the respondent No. 3, for modification of an order, passed by this Court on 30th June, 1993. The […]<\/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":[22,8],"tags":[],"class_list":["post-247948","post","type-post","status-publish","format-standard","hentry","category-calcutta-high-court","category-high-court"],"yoast_head":"\nBalaji International vs Collector Of Customs on 4 August, 1993 - 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\/balaji-international-vs-collector-of-customs-on-4-august-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balaji International vs Collector Of Customs on 4 August, 1993 - 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