TMI Blog1991 (2) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the petitioner, the ball bearings imported were covered by their import licence dated 31-3-1989. It appears that the Customs Authorities were not willing to clear the ball bearings described as 1209K on the ground that it was a restricted item under Appendix - 2B of the Import Export Policy 1990-91. The petitioner dispute the contention and states that the import of 1209K ball bearings was permissible being under item 540, Appendix-3 Part 'A' of the said Import Policy. 3. According to the petitioner, the Customs Authorities had released several consignments of 1209K ball bearings as permissible items under item 540. However, it is admitted by the petitioner that the Customs authorities had in one case imposed penalty amountin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment which has been cancelled was as follows: "B/E assessed, pending submission of P.D. Bond for 100% CIF value as per request of the C/A on the back of the original B/E". The final endorsement is also dated 28-12-1990. The said endorsement is on a stamp. The relevant portion of which reads "fine for H.O. Rs. 1,00,000/- (Rupees one lakh only). 5. According to the writ petitioner the fine of Rs. 1 lakh is 5 times the value of the 1209K ball bearings in the said consignment. The writ petitioner has challenged this imposition of penalty on 4 grounds: (1) That other importers of 1209K ball bearings had been permitted to import without payment of any penalty. Only in one case one importer had been imposed a penalty of 100% of the CIF val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce covering 1209K ball bearings. The statement of the clearing Agent was binding on the petitioner under Section 147 of the Act. (c) The other consignments referred to by the petitioner of 1209K ball bearings had been released without imposition of penalty by mistake. The Customs authorities were not bound to perpetuate such mistake. (d) The penalty had been imposed taking into consideration the market price in respect of 1209K ball bearings. From the price lists available, it appeared that the market price of 1209K ball bearings was much higher than the price declared on the invoice of the petitioner. 6. On a reading of the publication of the normal entitled NSK Ball and Roller Bearings of Nippon of Seiko, it appears prima facie that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to. In fact the cancelled endorsement would also bear this out. All the facts including the price lists relating to 1209K were already available for consideration by the respondent authority. When the cancelled endorsement was made, it is not the case of the respondents that there was any new factor which came into existence between the time of making the cancelled endorsement and the final endorsement. There was, therefore no justification for passing a different order on the same facts. The Customs Authority ought not, after having signed the order of release to have deleted the same without reference to the petitioner. In the case of Radha Kissen v. E. Rajaram Rao reported in AIR 1955 Cal. 241 a Division Bench of this Court held "when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner to the alternative remedy provided under the Act. Reference may be made in this regard to the case of G.Y. Yadav (supra) where in similar circumstances a Division Bench of the Andhra Pradesh High Court held :- "It is well recognised that judicial review is not confined to the question whether the competent authority has kept within the four corners of the Act and whether it has acted in good faith. The courts will pursue the enquiry further and will use the judicial review for determining whether the repository of a discretion although acting in good faith has not abused its power by an excessive or oppressive use thereof on irrelevant grounds or without regard to relevant consideration or with gross unreasonableness. The discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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