TMI Blog1993 (7) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 - M.N. Venkatachaliah, C.J.I. and A.M. Ahmadi and J.S. Verma, JJ. [Judgment per : A.M. Ahmadi, J.]. - Two separate consignments of Refined Industrial Coconut Oil were imported by the appellants/petitioners M/s. Jain Exports Private Ltd., hereinafter called 'the importers', on the 10th and 22nd of September, 1982 at Kandla Port from Colombo weighing about 3002.552 M. Tons and 5342.369 M. Tons of the CIF value of Rs. 1,63,67,050 and Rs. 2,91,21,450, respectively. Different Bills of Entry for clearance of the said consignments for home consumption were filed with the concerned authorities. The importers claimed the benefit of preferential rate of duty in terms of Customs Notification No. 431 dated 1st November, 1976 as amended from time to time. Permission to discharge the cargo from the vessels to the shore tanks was allowed in terms of Section 49 of the Customs Act, 1962 after obtaining representative samples. After the cargo was thus discharged the shore tanks were seated. Now under the import policy of 1980-81 whereunder the two consignments were imported, 'coconut oil' was mentioned under Entry 5 of Appendix 9 thereof as a canalised item which could be imported through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id that if the importers exercise their option to redeem the goods they may clear the goods on payment of duty at preferential rates applicable to goods of Sri Lanka origin. Both these orders passed on 17th and 18th December, 1982, respectively, were issued on 20th December, 1982. Both these orders were challenged by way of Writ Petitions Nos. 4037 and 4038 of 1982 under Articles 226/227 of the Constitution of India in the High Court of Delhi which petitions were referred to the Full Bench of the High Court and were disposed of by a common judgment dated 20th December, 1984. The High Court by majority dismissed the writ petitions but permitted the importers to approach the Central Excise and Gold Control Tribunal, hereinafter called 'the Tribunal', by way of appeals insofar as the order in regard to the redemption fine was concerned. The judgment of the High Court is reported in 1987 (29) E.L.T. 753. 2. Against the judgment of the High Court insofar as it related to the validity of the import, the importers approached this Court by way of Special Leave. The two appeals being Civil Appeals No. 2705 and 5383 of 1985, were disposed of by a common judgment on 5th May, 1988 vide Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consequence of the majority judgment of the Delhi High Court on the question of the quantum of the redemption fine came up for hearing before a two members bench of the Tribunal at Bombay. The Technical Member by his judgment and order dated 4th April, 1986 took the view that the appeals deserved to be dismissed both on merits and as barred by limitation. The Judicial Member by his judgment and order dated 4th June, 1986 took the view that the appeal should be partly allowed by reducing the redemption fine to 35% of the landing cost of the two consignments. In view of this difference of opinion between the two members, the matter was placed before the President of the Tribunal in terms of Section 129C(5) of the Customs Act. There upon, on the directions of the President, the appeals were placed for disposal before a three-member Bench at New Delhi. The Bench by its order dated 5th December, 1986 took the view that since the Delhi High Court had remitted the matters to the Tribunal for consideration of the question of quantum of redemption fines levied by the Collector of Customs, it was not open to the Tribunal to dismiss the appeals as barred by limitation. However, on the meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reheard by the Tribunal on the limited question regarding the quantum of the redemption fine. The Tribunal, after taking note of the observations in the judgment of this Court in the aforesaid writ petition and after examining the material placed before it, came to the conclusion that the importers' action could not be said to be bona fide as contended by them and dismissed both the appeals by its order dated 12th June, 1990. Against the said decision of the Tribunal the importers approached this Court under Article 136 of the Constitution. On this Court granting leave to appeal, the Special Leave Petitions Nos. 9955 9956 of 1990 came to be numbered as Civil Appeals Nos. 4917 4918 of 1991. Both the appeals were allowed by the Court's order dated 29th November, 1991. This Court took note of the fact that the question whether industrial coconut oil was a canalised item was finally set at rest by the decision of the Delhi High Court against which this Court had refused to interfere in appeal under Article 136 of the Constitution and hence the only question which survived related to the bona fides of the appellants in importing the said commodity as it would influence the Court' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantum of the redemption fee will depend on the totality of the facts and circumstances of the case. Therefore, even if in a given case the importers show that their action was bona fide, that by itself will not entitle them to a waiver of the full redemption fine unless the totality of the facts of the case so warrant. We must, therefore, at the outset clarify that we do not read the decision in D. Navinchandra Co. and B. Vijay Kumar (supra) as laying down any such absolute rule. 7. We now come to the question whether on the facts and in the circumstances of this case there is warrant for waiving the redemption fine, wholly or partly. The learned counsel for the importers placed reliance on the following facts to make good his submission that the importers had acted bona fide in believing that the non-edible variety of coconut oil was not a canalised item and could, therefore, be imported under the OGL. The import was made against the additional licences issued during the policy period 1980-81 and hence the fact that the Letters of Credit were opened on 31st July, 1982 and the imports were actually made in September 1982 was of no consequence. The further fact that the edibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut above the mere fact that the action of the importers was bona fide will not per se entitle them to a waiver of the entire redemption fine but the Court would have to bear in mind the totality of the circumstances and the benefit if any, derived by the importers from the illegal import. It is in this background that we must examine the question whether the Collector's order imposing the redemption fine and the Tribunal's refusal to interfere therewith require interference at our hands in the present proceedings. 10. At the outset we deem it proper to mention that the importers are an experienced Export House well versed in the policies and procedures in regard to the import and export of goods. Their function in the transactions in question was to import the goods as holders of Letters of Authority and pass them over to the licence holders who in turn would dispose of the goods to actual users in accordance with the terms and conditions of the licence. However, it is well established that the consignments in question were sold on high-sea-sale basis under the cover of the Letters of Authority and separate agreements with the licence-holders. The importers have not despite the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an authoritative clarification could have been obtained from the Chief Controller of Imports Exports who was competent to clarify the position and not the Chief Marketing Manager of the STC. This is also clear from what this Court observed in the decision in appeals arising from the decision of the Delhi High Court. This Court said : "The STC was not competent to bind the customs authorities in respect of their statutory functioning..." But we cannot overlook the fact that the view taken in the case of Jain Shudh Vanaspati Ltd, was that the non-edible variety was not a canalised item. If the matter had rested there it would have lent support to the submission of the importers that they bona fide believed that the non-edible variety could be imported under the OGL since it was not a canalised item. But since the imports in question, though under the 1980-81 policy, took place in 1982 under the Letter of Credit dated 31st July, 1982, the importers who are experienced in handling import and export of goods and well versed with the policies and procedures in that behalf must be assumed to be aware of the subsequent developments. The Chief Controller of Imports Exports had issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court. Even with these applications Nos. I.A. 3 4 of 1993 the so-called crucial document was not appended. In these applications the re-hearing was sought on the very same grounds on which an adjournment was sought earlier. This was followed by yet another communication which included a certificate of the Chartered Accountant to which was appended a statement of accounts showing that the importers had incurred a substantial loss in the sale of highseasbasis. We are indeed surprised at the attitude of the learned Advocates representing the importers. It betrays a misconception that any document can be produced at any time and stage of the proceedings and the Court can be expected to reassemble to give a fresh hearing or a second innings to fill the gaps left by the importers because of their default merely because they have the means to afford it. We cannot countenance such a demand and must deprecate it strongly. We do so and reject both the applications. To allow them would encourage multiplicity of hearings and create a wrong precedent. 13. For the foregoing reasons we are satisfied that the importers' contention that the redemption fine should be wholly waived or substa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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