TMI Blog1967 (1) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.The petitioner was granted a licence for the licensing period October 1961 to March 1962 for the import of certain goods which were covered by Serial No. 78(vii) of Part V of the Import Trade Control Schedule, This Serial number refers to electrical instruments, apparatus appliances and accessories etc. The licence was issued on 29-11-1961 and was valid for one year, that is upto 28-11-1962. The petitioner placed on 22-9-1962 an indent through a dealer in New Delhi, with a Western Germany firm for the supply of four numbers of appliances called Earth Testers and the goods arrived by post parcel. When they had to be cleared through the Customs the Assistant Collector, on a scrutiny of the goods, came to the conclusion that the aforesaid go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a discriminatory manner, when a heavy penalty of Rs. 4,000 had been levied for clearing the goods valued at only Rs. 998. 4.In answer to this contention of unfair discrimination, in the counter affidavit of the Department and before the Assistant Collector as well as the Appellate Collector of Customs, it was admitted that similar consignments had been cleared by some other dealers in Pondicherry without penalty. But the Department claims to have issued on 12-9-1962 a warning to a Pondicherry dealer by name M/s. Colomboni Imports and Exports Limited, who had effected such an import, and since there was reason to believe that Pondicherry merchants were having some kind of unity among themselves in making such imports, the Department was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing if the Department had issued a notification to all merchants clarifying the position regarding the proper classification of the goods hitherto imported under a wrong serial number of the goods. But the Department claims that by an oral warning given to one merchant they must be deemed to have communicated to other merchants also, their change of view about the trade practice followed, regarding the import of the article under Serial No. 78(vii) Part V, and that it is a proper exercise of judicial discretion vested in the Department, when they proceeded to levy a penalty of Rs. 4,000 in view of compensation under Section 167(8) in the case of the petitioner, after letting off previously another firm similarly situated, with a warning and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22-9-1962. It appears to me that there was no justification for the Customs Authorities to assume that the warning (which is claimed by the petitioner to be an oral one and which claim has not been challenged by the Department) should have been communicated automatically by the dealer M/s. Colomboni to the other dealers in Pondicherry. There is no evidence that the dealers in Pondicherry were in the practice of communicating such information among themselves. On the other hand, it is more likely that the warning being an adverse reflection on the dealer he would have kept the fact secret, without disclosing it to other dealers. 7.It was next argued by Learned Counsel for the respondent, that since the licence in the case of M/s. Colombo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory treatment between two dealers similarly placed in the application of a trade practice, recognised by the merchants as well as the Customs Authorities, without particulars being made available to the petitioner about a subsequent change of view of the departments regarding the correct classification of an item of goods for the purpose of complying with the import licence. This led to the imposition of a heavy penalty on the petitioner, while another merchant similarly placed was not so treated but was only warned amounting to a case of unfair discrimination. Adopting the principles laid down by this Court in Rikabdoss Bhavarlal v. Collector of Customs (1961) II MLJ 433 at 448, I allow the writ petition and the Rule Nisi is made absolut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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