TMI Blog1981 (2) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... trafficking in licence. Accordingly, while affirming the decision of the Government of India on other points, we set aside the part of the impugned orders maintaining the fines levied by the Board and send the cases back to the Board to consider whether the fines imposed on M/s. Madhusudan Gordhandas are really disproportionate to the penalty imposed on the licensee mills and levy such fines as would appear just and proper to the Board on such consideration. The Bank Guarantee furnished by the appellants for clearing the goods in question pursuant to the orders of this Court will remain enforceable till the final disposal of these cases. Appeal allowed in part. - 1141-43 and 1256-1258 of 1970 - - - Dated:- 5-2-1981 - A.C. Gupta and D.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieu of confiscation. The Board also remitted the personal penalties imposed by the Collector. 2. The facts found by the Customs authorities on the evidence in the cases covered by Government of India's order, dated February 25, 1970 are these. Under the Cotton Textiles Export Incentive Scheme Exporters of cotton fabric and yarn were entitled to get import licences for the import of any or all of the following four items : (i) Non-viscose staple fibre, (ii) Viscose rayon yarn, (iii) Synthetic yarn, and (iv) Polynosic viscose staple fibre A number of such import licences were issued to various textile mills, hereinafter referred to as the licensee mills; some of the licences were issued for the importation of non-viscose staple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to this arrangement the licensee mills handed over to Madhusudan Gordhandas both customs and exchange control copies of licences, blank applications signed by licensee mills for opening letters of credit, declaration forms for customs clearance and letters authorising the Bank of Tokyo Ltd., to hand over documents to Madhusudan Gordhandas against payment. The arrangement between Madhusudan Gordhandas and Dhanraj Mills was set out in three irrevocable contracts and an irrevocable power of attorney was given by Dhanraj Mills to Madhusudan Gordhandas. Madhusudan Gordhandas agree to purchase through Dhanraj Mills non-viscose staple fibre of the value of Rupees seventy to seventy-five lakhs c.i.f. from the various licensee mills. Thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paid by Madhusudan Gordhandas to the concerned authorities. The licensee mills disclaimed any interest in the goods imported. These are broadly the facts found by the authorities concerning the above cases; there are of a minor character and not of any consequence for the present purpose. 3. We see no reason for not accepting as correct the facts as found by the customs authorities. On these facts the Collectors of Customs held that as the entire gamut of functions of the importers had been performed by Madhusudan Gordhandas, they were really the importers of the goods in question and that it could not be said they were acting as the authorised representatives of the licensee mills because both the contracts for sale and the authorisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection or immunity from the operation of law and found that the documents Madhusudan Gordhandas eventually obtained from the Textile Commissioner were only usual authorisations for sale of the goods, obviously after import. 4. The facts of the cases covered by the Government of India's order, dated March 18, 1970 are similar except that the goods imported in these cases were staple fibres. The Board pointed out that this made no material difference because the main charge of trafficking in licence was clearly established. Here also the Board rejected the contention that the authorisations from the Textile Commissioner enabled Madhusudan Gordhandas to purchase and operate upon someone else's licence, that the documents purported merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 292 of the Indian Penal Code and the Court was considering the effect of a certificate granted by the Board of Censors under the Cinematograph Act. On the basis of the observations quoted above it was submitted that here also the Textile Commissioner having permitted the sale of goods and the licensing authority having granted amendment of the licences to include all the four items, the appellants should be held as protected. We have already referred to the nature of the documents obtained by Madhusudan Gordhandas from the Textile Commissioner and the circumstances leading to the amendment of the licences which make it plain that the offending acts in these cases cannot be justified in any manner. Raj Kapoor's case an therefore be of no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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