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1965 DIGILAW 55 (DEL)

WIRE METTING STORES v. UNION OF INDIA

1965-08-03

P.D.SHARMA

body1965
P. D. Shama, J ( 1 ) THE facts giving rise to the present writ petition under Articles 226 and 227 of the Constitution may briefly be noticed. Messrs Wire Metting Stores-Petitioner is a registered partnership firm and is mainly concerned in the supply of machinery parts of manure pulverising grading plants, which on 9th July, 1956, obtained licence No. N. 064672/55/nc/ccid from the Chief Controller of Imports and Exports for the import of parts of machinery required for industries and undertakings other than Cinemas and refrigerators of the vale of Rs. 20,000. 00 from soft currency areas during the period from January, 1956 to 31st December, 1957. The scope of the licence was circumscribed by an entry at its back in these terms : "this licence is valid to cover imports of steel perforated sheets provided these are component parts of manure pulverishing grading plants, stone crushing plant, grain and cereal machinery, marble machinery, pulse making plant, flour mill machinary and these machinery are not of banned type"the petitioner again wrote to the Deputy Chief Controller of Imports and Exports on 26th October, 1956, that it desired to import mild steel perforated sheets 36" x 96" parts of machinery for manure mills and so if any endorsement was necessary on the above licence it may be made to avoid any future complications. In reply the Assistant Chief Controller confirmed that the licence already issued covered the import of the suggested article and as such no new endorsement was necessary on the same. In pursuance of the licence and the assurance, the petitioner imported steel perforated sheets containing round holes of various sizes in three consignments. The Customs Authorities cleared part of the first consignment and in regard to the rest they issued a show-cause notice on 29th June 1957, to the petitioner to the effect that the imported machinery contained sizes as used in a rice milling mill and so it could not be said have been lawfully imported. The petitioner explained his view-point to the Assistant Collector who in turn submitted his report to the Deputy Collector respondent No. 3 for orders. The latter without giving any hearing to the petitioner by his order dated 20th August, 1957 (Annexurec) held that the imported machinery could be used for manure mills as well as for rice mills and therefore it was banned and not covered by the licence. The latter without giving any hearing to the petitioner by his order dated 20th August, 1957 (Annexurec) held that the imported machinery could be used for manure mills as well as for rice mills and therefore it was banned and not covered by the licence. He also confiscated the goods under clause 8 of section 167 of the Sea Customs Act read with section 3 of the Imports and Exports Control Act, 1957, but in the alternative the petitioner was given an option under section 183 of the said Act to pay Rs. 4,000. 00 as fine and get the goods cleared for home consumption. . The other two similar consignments of the petitioner for the same reason were confiscated. As the proceedings in regard to them have not been finally disposed of the present petition docs not relate to them. The petitioner felt aggrieved from the order passed by the Deputy Collector and filed an appeal before the Central Board of Revenue respondent No. 2 which was accepted to the extent that the fine was reduced from Rs. 4. 000. 00 to Rs. 2. 000. 00 (Annexure E ). The petitioner went in revision against thisorder aswell to the Central Government respondent No. 1 which also stood dismissed on 6th April 1960 (Annexure F ). The petitioner prays for cancellation of the orders of the Deputy Collector, Customs, the Central Board of Revenue, and the Central Government (Annexure C, E and F) respectively on the grounds that the articles imported were of the type covered by the licence (Annexure A) and that respondent No. 2 passed the impugned order without giving him any hearing. It also made a grievance of the fact that six other firms mentioned in paragraph 15 of the writ petition as well imported perforated sheets of the quality done by it but their goods were cleared and not confiscated as had been done in its case. ( 2 ) THE respondent conceded that the Deputy Collector, Customs passed the impugned order without giving any hearing to the petitioner but according to them it was not necessary because the hearing had been given earlier by the Assistant Collector, Customs on whose report the Deputy Collector, Customs, passed the order. ( 2 ) THE respondent conceded that the Deputy Collector, Customs passed the impugned order without giving any hearing to the petitioner but according to them it was not necessary because the hearing had been given earlier by the Assistant Collector, Customs on whose report the Deputy Collector, Customs, passed the order. They further admitted that the Departmental Authorities had found as a fact that the steel perforated sheets m question were capable of being used as component parts of both manure mills as well as rice mills, but added that the imports of the same was banned. ( 3 ) THE learned counsel for the petitioner strenuously urged that the Deputy Collector, Customs, could not have passed the impurgned order (Annexure C) without giving the petitioner a hearing and that the bearing given by the Assistant Collector, Customs, to the petitioner on whose. report the impugned order was passed did not satisfy the condition that nobody should be condemned unheard. He relied on the case, Messrs Ramchand Jugdish Chand v. The Deputy Collector of Customs, Calcutta and which laid down : "where a personal hearing is given in an adjudication, the person " who hears cannot allow an enquiry to be held or evidence to be taken by another person and them pass the order on reading the records. The person to be heard is there deprived of an opportunity of satisfying the person who passes the orde The words "personal hearing" cornote personal aspect both as regards the person heard and the person hearing, that is the principle of natural justice which indicates that personal hearing, is not an empty formality. Where, therefore, a personal hearing is given in an adjudication of confiscation of imported goods under S. 182 by the Assistant Collector of Customs and the order of confiscation is passed by the Deputy Collector who did hear the importer in person, his order is impeachable on the ground of violation of the principle of natural Justice. " The same principle was enunciated in case Shri Amir Singh v. Government of Indict. Keeping in view the rule laid down in the above two authorities, one of which is a Bench decision of this Court, the order passed by the Deputy Collector, Customs (Annexur C) is invalid because it. was passed without giving any hearing to the petitioner. " The same principle was enunciated in case Shri Amir Singh v. Government of Indict. Keeping in view the rule laid down in the above two authorities, one of which is a Bench decision of this Court, the order passed by the Deputy Collector, Customs (Annexur C) is invalid because it. was passed without giving any hearing to the petitioner. Further it is conceded by the respondents that the conficated articles were capable of being used as component parts of both, manure inills as well as rice mills. In my opinion if the articles could be used as component parts of manure mills not of the banned typethese could be legitimately imported on the basis of the import licence (Annexure A) because it nowhere laid down that the imported articles should only be capable of being used in the manure mills and not any other machinery such as rice mills. The impugned orders have failed to take notice of this fact which was clear from,. a cursory reading of the import licence and so there is an error patent on the record. This also entitles the petitioner to pray for the. setting aside of the three orders alluded to above. ( 4 ) FOR the above reasons, the writ petition is allowed and the three impugned orders Annexure C. E and E) are quashed. The petitioner will get costs of the present proceedings and will also be entitled to the refund of the fine (penalty), if paid by him to the Customs Authorities.