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2016 (10) TMI 564 - HC - CustomsImport of Ammonium Nitrate - restoration of licence in Form P-3 under the Explosive Act, 1884, (Act) - licence to possess for sale of Ammonium Nitrate from a store house exceeding 30MT or in tanks as per Ammonium Nitrate Rules 2012 - licence issued on 03.12.2014, to remain valid till 31.03.2019 - opportunity of being heard - whether invocation of power under Section 6E read with Rule 42(5)(i), of the Rules to revoke the licence without affording the opportunity of hearing to petitioner justified? - Held that: - it is evidently clear that the respondent on receipt of the information from the Principal Commissioner of Customs, Chennai, has taken note of the materials placed before it and it appears on further investigation on selected buyers, mentioned that the entire quantity of Ammonium Nitrate was used in Mines and Quarries for blasting operations and not used for agricultural purposes. The respondent taking into consideration the information received by it, has formed an opinion that licence granted to the petitioner requires to be placed under suspension as an interim measure and the reasons for exercising the power of interim suspension is vivid on a reading of the impugned order. Therefore, the petitioner is not correct in contending that the Licencing Authority has not recorded his opinion, while exercising the power of the interim suspension. In terms of proviso in Rule 42(5), the respondent has granted an opportunity to the petitioner to show cause as to why the Licence should not be cancelled. Therefore, the impugned order cannot be stated to be devoid of reasons nor it can be stated that the competent authority did not form an opinion before passing the order of interim suspension. Lack of jurisdiction - power of authority for interim suspension - the Joint Chief Controller of Explosives, South Circle - Held that: - The learned Additional Solicitor General produced before this Court a chart, attested by the Chief Controller to show the delegation of powers granted by the Chief Controller. By virtue of the said chart, it is seen that the Joint Chief Controller has been delegated with the power for interim suspension and issuance of the show cause notice. Whether the order of rejection of the petitioner's application for issuance of licence in Form P-5, for import of Ammonium Nitrate is just and proper.? - Held that: - the use of Ammonium Nitrate having been regulated, the petitioner cannot, as a matter of right, claim that except for the circumstances set out in Rule 6(4), there can be no restriction on import or export of Ammonium Nitrate, and it cannot be a ground to interfere with the impugned order, as the Rule 6 only postulates general restrictions. Thus, while rejecting the application submitted by the petitioner for grant of licence in Form P-5, bearing in mind the interest of the National Security, thought fit to restrict issuance of licence in favour of the Ammonium Nitrate users and the petitioner being a trader, rejected their application. The restriction imposed is a reasonable restriction in the light of the fact, separate Rules were framed for regulation of the use of Ammonium Nitrate, which has been specifically brought within the definition of an explosive substance. In such circumstances, this Court is not inclined to interfere with the impugned order. Detention of consignment by the customs - purchase order placed on 06.05.2015 i.e., much prior to the petitioner's application for grant of licence in Form P-5 for import of Ammonium Nitrate and therefore, when it became a necessity to obtain a licence, the petitioner had applied for the same and thus the detention of consignment justified? - Held that: - The date of purchase order is of no relevance, while considering as to whether the petitioner is entitled to import the impugned goods, what would be relevant is the law which prevails on the date when the bill of entry is filed and on such date, though the goods were freely importable unless the importer had a licence in Form P-5, import was impermissible. Thus, the petitioner having not been granted a licence in Form P-5, cannot claim that the impugned consignment should be released to the petitioner. If this is done, it would tantamount to issuing a direction to the authorities to disobey the rules, which cannot be done. Petition dismissed - competent authority directed to consider the petitioner's reply dated 01.06.2016, to the show cause notice, dated 20.05.2016, afford an opportunity of personal hearing to the petitioner and pass orders on merits and in accordance with law, within a period of 30 days.
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