TMI Blog1993 (3) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... ods for home consumption, on the arrival of the goods, the customs authorities took the view that cassia is specifically covered by the negative list under para 156 (restricted items) Part A (Consumer goods) Sl. No. 8 and hence requires a specific licence for import of the same. After giving a personal hearing to the petitioner, an order of adjudication was passed on 9.10.1992 confiscating the goods and imposing a penalty of ₹ 1,50,000/-. Against that, the petitioner filed an appeal before the Collector (Appeals) and it is pending. 4. The petitioner in W.P. No. 2503 of 1993 imported 13,230 kilograms of cassia from Singapore valued at ₹ 5,53,350/- and on the arrival of the goods, the petitioner filed bill of entry No. 29161 dated 26.8.1992 for clearance of the goods for home consumption. Here also a personal hearing was fixed on 12.10.1992 and since no one appeared for the personal hearing, an order of adjudication was passed confiscating the goods absolutely and imposing a penalty of ₹ 1,51,000/- on the petitioner. The petitioner has preferred an appeal before the appellate authority and it is pending. 5. The petitioners allege in the affidavits [that] with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject to export obligations and that the clearance of the same was not permitted without a specific licence from the Competent. Authority. It is also stated that the import of cassia causes a severe drain OR the country's limited foreign exchange resources and that since the petitioner has not possessed the licence, the third respondent has passed an order confiscating the goods absolutely under Section 111(d) of the Customs Act and levied the imposition of penalty. It is also stated in the counter affidavit that since cassia is a restricted item requiring a specific licence under the relevant Import Policy, the petitioner was not permitted to clear the goods without such licence. It is also claimed in the counter-affidavit that the petitioner is only a trader, that it is not a genuine importer and that therefore the third respondent passed the order of adjudication and that it is a valid one. It is also claimed in the counter-affidavit that importation of goods is governed only by the Import Policy and that goods cannot be permitted to be imported or cleared contrary to the conditions laid down in the Policy. It is also stated that after the order of confiscation, the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he of the Calcutta High Court in S.S. Kothari, In re ([1995] 5 Excises and Customs Cases 81) wherein it has been Sield that in similar matters of imports, they have been allowed after payment of redemption fine and that to deny the petitioner of that benefit by passing an order of confiscation is arbitrary. The. learned Senior Counsel also relies upon another decision of a learned Single Judge of the Bombay High Court in Gujarat State Export Corporation v. Union of India 1984 ELT 570 where the Customs House was in doubt as to whether the import was valid or not and had released the import of identical items on previous occasions and therefore the goods cannot be liable for confiscation. The learned Senior Counsel also contends that the reasoning given in the impugned orders is perverse and that the authorities have not considered the question of releasing the goods on payment of redemption fine which has been done earlier in similar cases. As such, the learned Senior Counsel argues that the impugned orders are arbitrary and illegall. The learned Senior Counsel refers to a circular with regard to Liberalised Exchange Rate Management System (LERMS) dated 29.2.1993 and points out para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l practice adopted by them with regard to import of cassia before ordering the confiscation and levying penalty. It has not been done in this case and as such the impugned orders offend Article 14 of the Constitution of India. In S.S. Kothari, In re ([1985] 5 Excises Customs Cases 81) considering the scope of Section 125 of the Customs Act, the learned Judge has held as follows: (atp.86). Section 125 of the Customs Act, 1962 provides that whenever confiscation of any goods is authorised under the said Act, the officer adjudicating it may, in the case of any goods the importation or exportation whereof is prohibited under the said Act or under the law for the time being in force, give to the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. Even if the importation of the goods is prohibited under the Act, the adjudicating officer has the discretion to give an option to the importer to pay in lieu of confiscation such fine as the officer thinks fit. The Act has not provided the circumstances under which the prohibited goods should be released upon payment of fine in lieu of confiscation. The adjudicating officer may, in his discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be exercised fairly. There is no doubt that, with regard to cassia, orders were passed by the Department earlier only ordering release on payment of redemption fine or penalty only, in lieu of confiscation. It has to be followed in these cases also. 11. The principle of legitimate expectation which is laid down in Halisbury Law of India -- [sic England?] 4th Edition Volume 1(1) para 81 can be usefully referred to and applied also. A. person may have a legitimate expectation of being treated in a certain way by an administrative authority though he has no legal right in private law to receive such treatment the legitimate expectation arises either from a representation or promise made by the authority including and implied representation or from consistent past practice. (Underlining is mine ). 12. That apart a reading of the findings of the Authority in both cases show the non-application of the mind of the adjudicating authority. Para 6 of the impugned order in W.P.2501 of 1993 and para 5 of the impugned order in W.P.2503 of 1993 is one and the same and it is to the following effect: Findings The imported goods are specifically mentioned in the negative list of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Collector of Customs who passed the order of confiscation undoubtedly had the discretion to give an option to the appellant to pay a fine in lieu of confiscation. Presumably the Additional Collector of Customs assumed that he was bound to confiscate the goods because he has not adverted to this aspect in his order. He had undoubtedly the authority under law to give an option to the importers to pay such fine as was considered appropriate by him (not exceeding the full market value of the goods in question) in lieu of confiscation of the goods. We are of the opinion that since the Additional Collector of Customs who passed the order for absolute confiscation had the discretion to give the option for redemption, it was but just, fair and proper that he addressed himself to this question The adjudicating authority has failed in its authority as pointed out by the Apex Court of the land in the above mentioned case, with regard to the giving up of an option to redeem. As such, in my view, the impugned orders have got to be set aside. 14. Learned Additional Central Government Standing Counsel contends that the goods are vested with the Government after confiscation and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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