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1989 DIGILAW 32 (MAD)

Indian Express (Madurai) v. Collector of Customs

1989-01-13

BAKTHAVATSALAM

body1989
Judgment :- The petitioners seek the issue of a writ of certiorarified mandamus to call for the records to quash the communication No. S8/264/87 SIB dated 14-12-1988 of the respondent and to direct the respondent to give a hearing to the petitioners and pass orders on the application dated 15-11-1988 filed by the petitioners for production of documents in connection with the proceedings in the show cause notice No. S8/264/87 SIB 94/87 dated 29-9-1987. 2.It is necessary to state a few facts : The second petitioner imported 14 Nos. of Hong Hua Web Off-set Printing Units from M/s. Hong Hua Machinery Works Ltd. Taiwan, during 1984 and at the time of assessment they claimed certain concessions under Customs Notification No. 114/80 dated 19-6-1980. After obtaining necessary declarations from the petitioners, the petitioners were allowed clearance under OGL and the benefit of the Customs Notification No. 114/80 was extended to the goods. Subsequently when the intelligence wing of the respondent stated that the second petitioner had imported printing units which are having much lower output than the one declared to Customs Department and has wrongly availed of the benefit of the Customs Notification No. 114/80 dated 19-6-1980, the matter was taken up for necessary investigation. After close investigation of the matter in detail, a show cause notice running about 50 pages, was issued to the petitioners and others under the proviso to Section 28(1) of the Customs Act, 1962 ".... You had given us time till 4-11-1988 for this purpose. Unfortunately owing to Mr. Guruswamy's inability to come to Madras this week, we have not been able to prepare and finalise the applications. We request you to grant us time till 9-11-1988 for above purpose..." * On 17-11-1988, the counsel for petitioners enclosing the application dated 15-11-1988, requested the respondent as follows:- "...I am enclosing the said application and request you to kindly take it on file and give us a date for arguments on the said application....." * But the respondent by letter dated 14-12-1988, fixed the hearing on 21-12-1988 to take up the evidence of one Shri S. Srinivasan and requested the petitioners to be present on that date and time; and the petitioners were informed that otherwise the case would be taken up for adjudication without any further reference to the petitioners in the matter. At this stage, the petitioners have come up before this Court on 21-12-1988 and on 22-12-1988 Sivasubramaniam, J. has issued notice of motion, granting interim stay for four weeks. 3.The respondent has filed a counter affidavit. It is claimed in the counter affidavit that at the hearing on 21-10-1988, the counsel for petitioners requested for the production of certain documents relating to the imports of the similar machines imported by the petitioners, by certain other Newspaper concerns. It is further claimed in the counter affidavit that the petitioners undertook to file an application to request the respondent to issue summons under Section 108 of the Customs Act, 1962 4.By consent of both parties, the main writ petition is taken up for final disposal, after admitting the writ petition. 5.Mr. Govindaswaminathan, the learned counsel for petitioners submits that the limited request of the petitioners is to give a hearing on the application filed by the petitioners on 15-11-1988, with regard to the summoning of the documents in connection with the adjudication. The learned counsel further submits that the said documents can be summoned at the petitioners' costs and that they are necessary for the purpose of giving a detailed reply to the show cause notice. The sum and substance of the argument of the learned counsel for petitioners is that the petitioners may be given a hearing on the application dated 15-11-1988. 6.Mr. R. Krishnamurthi, the learned Advocate General appearing for the respondent/department submits that the petitioners cannot compel the department not to proceed with the proceedings till the said application is disposed of. The learned counsel further contends that it is always open to the petitioners to challenge any order passed at a later stage and the petitioners' assumption that they will not be given an opportunity is not correct. The learned counsel submits that there is no violation of principles of natural justice on the facts of this case and refers to the decision inUnion of Indiav.Jyoti Prakash 1971 AIR(SC) 1093, 1971 (1) LLJ 256 , 1971 (2) SLR 203, 1971 (1) SCC 396 , 1971 (3) SCR 483 ), inF.N. Royv. Collector of Customs 1957 AIR(SC) 648, 1957 (63) CRLJ 1026, 1983 ECR 1667, 1983 (13) ELT 1296, 1957 SCJ 734, 1957 (1) SCR 1151) and the unreported decision of a Division Bench of this Court in (W.A. Nos. Collector of Customs 1957 AIR(SC) 648, 1957 (63) CRLJ 1026, 1983 ECR 1667, 1983 (13) ELT 1296, 1957 SCJ 734, 1957 (1) SCR 1151) and the unreported decision of a Division Bench of this Court in (W.A. Nos. 1015, 1017 and 1021 of 1981, dated 30-11-1987)Vittalanathan and Othersv.TheCollector of Customs Coimbatore and others. Thelearned counsel further contends that the short question to be considered at the adjudication proceedings is whether a benefit under a particular notification is to be given to the petitioners or not and when all the materials on which the department relies upon were given to the petitioners it is open to the petitioners to put forth the case on the materials already on record to show that they are entitled to the benefit under the concerned notification. The learned counsel further contends that it is not open to the petitioners to invoke the jurisdiction of this Court under Article 226 of the Constitution of India at this stage of the adjudication proceedings and that it is time enough for the petitioners to challenge any order passed by the respondent/department by way of appeal as provided under the Customs Act. 7.I have considered the arguments of Mr. Govindaswaminathan, the learned counsel appearing for the petitioners and of Mr. R. Krishnamurthi, the learned Advocate General appearing for the respondent. The simple question which has to be considered in this case is whether a writ ofmandamuscan be issued to give a hearing to the petitioners and passed orders on the application dated 15-11-1988 filed by the petitioners, for production of documents, in connection with pending adjudication proceedings. Here is a case where the adjudication proceedings has just started under the Customs Act, 1962 "..... I submit at this juncture, that the request of the petitioners to issue the summons under Section 108 of the Customs Act, 1962 is to be considered legally and has to be examined whether such issuance of the summons under Section 108 could be sustained ....." * In paragraph 9 of the counter affidavit, it is stated as follows : - "..... I have to consider the facts and evidences in the case for arriving at a decision, whether it is necessary to invoke the powers as claimed by the petitioners. I have to consider the facts and evidences in the case for arriving at a decision, whether it is necessary to invoke the powers as claimed by the petitioners. In any event, I have not taken any decision in this behalf ...." * In paragraph 10 of the counter affidavit it is stated as follows :- "..... The petitioners have failed to advert that I will not follow the procedure of principles of natural justice when considering the application filed by the petitioners and in this behalf there cannot be any compulsion to deal with the said application at any particular time ...." So also, in paragraph 14 it is stated thus: "..... The personal hearing fixed to 23-12-1988 was only for purposes of considering the case taken as a whole and not as projected by the petitioners and nowhere in the notice of hearing it is stated nor there was any indication given by me that the application filed by the petitioners dated 15-11-1988 will not be considered..." * In view of the statements made by the respondent in the counter affidavit as stated above. I do not think it is necessary to issue a writ ofmandamusat this stage. So also, I do not feel it is necessary to refer to the decisions cited by the learned Advocate General, at this stage with regard to the pro-position whether personal hearing is to be given or not. As seen from the counter affidavit, it is clear that the respondent has not taken any decision with regard to the application filed by the petitioners. As such, the writ ofmandamusis not a writ of course, or a writ of right, but is as a rule a matter for the discretion of the Court. I am not inclined to issue a writ ofmandamusas prayed for. 8.I am of the view that if the petitioners are aggrieved by any order passed by the respondent, either on the application filed by the petitioners on 15-11-1988 or in the adjudication proceedings, it is open to the petitioners to challenge the same. The writ petition is dismissed. However, there will be no order as to costs.