Sha Kishorilal Genajee v. The Collector of Customs, Madras
1964-07-14
S.RAMACHANDRA.IYER, T.VENKATADRI
body1964
DigiLaw.ai
The Judgment of the Court was delivered by Ramachandra Iyer, C.J.- This is an appeal from the judgment of Veeraswami, J., declining to issue a writ of certiorari, applied for by the appellant with a view to quash the order of the Assistant Collector of Customs, Madras, dated 18th June, 1962, confiscating certain goods imported by the appellant. The appellant is an established importer of goods from foreign parts. For the half-years (i) April, 1960 to September, 1960, (ii) October, 1960, to March, 1961 and (iii) April. 1961 to September, 1961, he filed applications on 16th June, 1960, 1st June, 1961, and 22nd November, 1961, respectively, for importing ‘other lamps ‘under Serial No. 38-A (f) of Part II of the Import Policy Book. Licences were granted to him for all the three half-years in January, 1962. When the goods arrived at the Madras Harbour on 13th May, 1962, it was found that all the consignments were of photo flash bulbs, valued at Rs. 1,985-94. The Assistant Collector of Customs held that the goods were covered by the licences produced by the appellant, as they came under Serial No. 78 of Part V of the Red Book. He accordingly directed their confiscation, giving at the same time an option to the appellant to clear the goods on payment of Rs. 5,360. The appellant then filed an appeal against that order of confiscation. The appellate authority, while holding that the appellant had imported the goods in contravention of the terms of the licence, upheld the order of confiscation, but reduced the fine to Rs. 1,985. The appellant thereupon filed an application under Article 226 of the Constitution to quash that order, as, according to him, the import of flash bulbs must be deemed to be authorised, inasmuch as they would come under Serial No. 38-A (f) of Part II. Veeraswami, J., did not accept this contention and dismissed the application. Hence the appeal. During all the relevant periods, photo flash bulbs were included in Serial No. 78 (vii), (v) of Part V, the relevant part of which ran thus: "Electrical instruments, apparatus and appliances and accessories thereof, not otherwise specified in this Schedule, excluding telegraphic and telephonic. .......................................................................... (vii) others ...........................................................................
Hence the appeal. During all the relevant periods, photo flash bulbs were included in Serial No. 78 (vii), (v) of Part V, the relevant part of which ran thus: "Electrical instruments, apparatus and appliances and accessories thereof, not otherwise specified in this Schedule, excluding telegraphic and telephonic. .......................................................................... (vii) others ........................................................................... (v) Carbon filament lamps, used for resistance and heating purposes, photo flash bulbs......" Serial No 38-A (f) of Part II, which referred to "Other lamps ", stated in the remarks column that quota licences will be valid only for import of (i) Mercury vapour lamps and (ii) sodium vapour lamps. There can be little doubt from the classification of goods adopted in the Red Book of the relevant half-years, that photo flash bulbs imported by the appellant would come only under Serial No. 78 (vii) (v) of Part V and will not be covered by licences issued in respect of goods falling under Serial No. 38-A (f) of Part II It, however appears that on 3rd October, 1961, the Government of India issued a notice to the following effect: "Attention of the public is drawn to Order No. 15 of 1961, dated the 3rd October, 1961. (2) The classification of carbon filament lamps used for resistance and heating purposes, photo-flash bulbs and other bulbs which were hitherto classified under Serial No. 78/V of the Import Trade Control Schedule would now be classified under Serial No. 38-A (f)/II-Others. The contention urged on behalf of the appellant is that inasmuch as the Government of India have classified photo flash bulbs under Serial No. 38-A (f) of Part II, the licences issued to the appellant, statedly authorising him to import goods under that classification, would be valid to cover the goods actually imported. This contention will not avail the appellant in regard to the consignments relevant to the half-years, April, 1960 to September 1960, and October, 1960 to March, 1961, for the obvious reason that when the applications for the issue of licences for those half-years were made, that is, on 16th June, 1960 and 1st June, 1961, the notification had not been issued. It is, however, argued by Mr. Vedantachari that inasmuch as the licences were issued only on 6th January, 1962, for those two half-years, such licences should be held to cover all those goods that would properly come under Serial No 38-A (f) of Part II on such date.
It is, however, argued by Mr. Vedantachari that inasmuch as the licences were issued only on 6th January, 1962, for those two half-years, such licences should be held to cover all those goods that would properly come under Serial No 38-A (f) of Part II on such date. We are unable to agree. When the appellant applied for licences to import goods under Serial No. 38-A (f) of Part II, he must be deemed to have applied only for the import of such goods as could be validly imported under that classification. In two unreported judgments, W.A. Nos. 26, 49 and 50 of 1961 and 27, 47 and 48 of 1961. This Court has recognised the principle that the material date in similar cases, would be the date of the application and not the date of the grant of permit. The licences issued to the appellant for the first two-half-years would not, therefore, entitle him to import photo flash bulbs. The order of confiscation in regard to them was, therefore, valid. Mr. Vedantachari then contended that whatever might be the case in regard to the first two half-years, the import for the third half-year was fully justified, as the notification of the Government of India, dated 3rd October, 1961 should be deemed to incorporate photo flash bulbs within serial No. 38-A (f) of Part II. The notification, in our view, has merely specified a change in the classification. In terms, it does not amend Serial No. 38-A (f) of Part II. During the half-year, April, 1961 to September, 1961, photo flash bulbs were mentioned only under Serial No. 78 (vii), (v). The Import Policy Book of the Government for that half-year was published on 1st October, 1961, two days prior to the notification referred to above. It was only in the Policy Book of the next half-year namely, April, 1962 to September, 1962. the change of classification of photo flash bulbs from Serial No. 78 to Serial No 38-A was incorporated. A mere classification of goods so as to come under a particular category, as that classification has not been incorporated into the Policy Book, cannot entitle an importer to treat it as having been adopted therein for the purpose of import. The Import Policy of the Government to permit an import, should be read in the light of columns 4, 5 and 6 in the Red Book as well.
The Import Policy of the Government to permit an import, should be read in the light of columns 4, 5 and 6 in the Red Book as well. During the relevant period those columns remained as before and the change contemplated by the notification, dated 3rd October, 1961 was not incorporated therein. It would not, therefore, be competent for the appellant to import photo flash bulbs, which were expressly included in Serial No. 78 (vii) of Part V, under a licence issued in respect of goods coming under Serial No. 38-A of Part II. We, therefore, agree with Veeraswami, J., that the Customs Authorities Were entitled to treat the imported goods as outside the licences issued to the appellant and confiscate the same. The appeal fails and is dismissed with costs- Advocate’s fee Rs. 240-00, to be divided equally between all the appeals. P.R.N. -------------- Appeal dismissed.