TMI Blog1985 (12) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... l for our present purpose are not in dispute. The writ petitioners purchased seven REP group of import licences. REP licence is a kind of licence granted to an export house for importation of special types of goods for special use in the industry manufacturing the exportable goods. In the present case now before us the concerned licences purchased by the writ petitioners authorised importation of goods described in A35, Appendix 17 of the Import Policy for 1982 and the description of the goods as set out therein is as follows: Special production aids for electronic industry, namely, wrapping and unwrapping tools, aligning tools, desoldering tools, I.C. extractors . 3. On the authority of the licences so purchased, on September 27, 1982, the writ petitioners entered into an agreement to purchase and import Mitutoyo Brand Aligning Tools (Dial Indicators) with M/s. Mitutoyo Manufacturing Co. Ltd., Japan. In terms of the said contract Mitutoyo Manufacturing Co. despatched several consignments of such aligning tools. The writ petitioners presented bills of entry to the customs authorities for assessment of duty and release of the goods. The customs authorities thought that the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion measuring instruments under similar REP licences and in some cases clearance had been allowed although, according to them now, those were not covered by the licences. In the minutes thus disclosed there was no suggestion that such earlier release was made on any wrong information. But because of such divergence of views, the matter was brought to the notice of the Deputy Collector. The Deputy Collector took the view that the goods imported were not covered by the licences but he advised an enquiry as to whether similar goods had been allowed to be imported on similar licences by the customs authorities at Bombay. Since the Bombay customs authorities did not own up release of any such goods, it was decided to initiate an adjudication proceeding. 6. The writ petitioners filed rejoinders to such opposition and they categorically denied the suggestion that similar goods were earlier cleared on similar licences on any wrong information supplied. They took the plea that the customs authorities never held the goods imported to be not covered by such REP licenses. They reasserted that the goods imported were really covered by the licences. In any event, they relied on a decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r affidavit have taken the stand that such goods are precision measurement instruments though they can be used for aligning purpose with the aid of accessories. The view of the customs authorities has been sought to be supported by the evidence of an expert Dr. Mrs. Chowdhury who while specifying what aligning tools are used in electronic industry, has not categorically overruled the claim that such dial indicators as are being imported are of no special aid to such an industry. Therefore, in our view, the materials on record are not sufficient to enable us to come to a definite conclusion as to whether the aligning tools (dial indicators) really answer the description of the goods specified in entry A 35, Appendix 17 and hence are covered by the licences. Moreover, the issue is such that no final decision can or should be arrived at except upon a thorough adjudication based on expert s evidence. The customs authorities have relied upon a subsequent decision of their own in an adjudication initiated after the initiation of the present writ proceedings. We are, however, not satisfied that it would be safe on our part to act on the said decision when such a decision had been taken mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orters to import such goods again on the basis of similar licences. It is also an accepted principle that if the customs authorities had been in error in not appreciating on any previous occasion that some goods not really covered by the licence were being imported on the basis of such licence they cannot be made to be embedded in the error for all transactions in the future. They have every right to correct their own error and if such correction requires an adjudication it would not be just and proper for this court to refuse them an opportunity to do so. The learned trial Judge has relied on the observation of a learned single Judge of this court in the case of Mercantile Express Co. Ltd. v. Assistant Collector of Customs Ors. A.I.R. 1958 Cal 630. That was a case which involved the interpretation of the tariff Schedule. The question raised was as to whether certain goods should be assessed as coming under item 63(28) of Schedule 1 of the Tariff Act or under item 163(9). The learned Judge, upon construction of the tariff Schedule came to the conclusion that it comes within item 63(9) of the Schedule and not under 63(28) as claimed by the authorities in the case before the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of similar goods might have misled them in not ascertaining as to whether such goods really come within the cover of the licence or not. This contention in our opinion, is to be taken into consideration for the purpose of deciding whether any penalty should be imposed and if such a penalty is to be imposed whether the same should be nominal or not. But that by itself cannot be a ground for disentitling the customs authorities from holding an adjudication particularly when on such adjudication alone it can finally be decided as to whether the goods sought to be imported really answer the description of the goods permitted to be imported under the disputed licence. 10. The learned Judge has rightly commented on the failure of the customs authorities from holding such an adjudication proceedings all these months either prior to the writ proceeding or even thereafter when there was no injunction restraining them from holding as such. That indeed was a lapse on the part of the customs authorities though they have explained their position by saying that once the matter was brought before the High Court in the writ proceeding they refrained from taking any steps at their end which may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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