TMI Blog1995 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... s are other than dry fruits and are consumer goods requiring a valid import licence for clearance. Since the petitioner firm did not produce a licence, the Additional Commissioner of Customs confiscated the goods under Section 111(d) of the Customs Act, 1962 r/w. Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992. The Additional Commissioner of Customs was however pleased to allow clearance of the goods under import on payment of redemption fine and also levied personal penalty on the petitioner firm under Section 112(a) of the Customs Act, 1962. The Additional Commissioner has also tried to distinguish the CEGAT decision in the decision in G.K. Enterprises v. Collector of Customs, Madras wherein it was held that aricanuts are dry fruits and can be allowed to be imported freely. Aggrieved by the order of the Additional Commissioner of Customs, the petitioners filed appeals before the Commissioner of Customs and Central Excise (Appeals), Trichirapalli. The appellate authority by his order dated 26-9-1995 and 28-9-1995 respectively ordered clearance of the goods on licence bond. The appellate authority in paragraph 4 of his order has observed as follows : "I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner's firm and by its lawyer. Therefore, the petitioners have filed the above writ petitions for a mandamus directing the respondents to release the betel nuts imported and covered by respective bill of entries. 3.A common counter affidavit was filed on behalf of the respondents by the Superintendent of Central Excise. It is the contention of the department that the goods imported are betel nuts and are readily useable in betel chewing/supari etc. and thus clearly and undoubtedly in the nature of consumer goods of agricultural origin. Other contentions were also raised by the respondents in the counter affidavit. 4.Mr. Habibullah Badsha, learned Senior Counsel appearing for some of the writ petitioners contended that the respondents have failed in their duty in not releasing the goods inspite of the order of the appellate authority and therefore, it will tantamount to violation of the petitioners` fundamental right under Articles 14 and 19(1)(g) of the Constitution of India and that the silence and inaction on the part of the Additional Commissioner of Customs in not releasing the goods on a licence bond is mala fide in law and arbitrary and causing great loss to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Customs [1989 (44) E.L.T. 202]. 6.Mr. Jayachandran, learned A.C.G.S.C. in reply to the arguments of learned counsel for the petitioners submitted the following points : The goods imported are betel nuts and readily usable in"(a) betel chewing/supari etc. and thus are clearly and undoubtedly in the nature of consumer goods of agricultural origin. Hence they fall under entry S1. No. 156 of Part III -(b) Restricted items of Import under the current Export-Import Policy 1992-97. Therefore, the goods can be imported only under a specific(c) licence. Otherwise, the goods are liable for confiscation. Since in this case, there was no licence produced by the importers, the 3rd respondent while adjudicating the matter, confiscated the goods with an option to redeem the goods on payment of fine. Betel nut or arecanut is only a nut and not dried fruit. For(d) this, the 3rd respondent considered the dictionary meaning of betel nut, arecanut, nut and dry fruit and also referred Encyclopedia of Science and Technology by McGraw Hill. There was only one view by the Department from the beginning(e) that Betel nut is not dry fruit and only when two views are possible, the interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late authority and the limitation of three months to file appeal has not yet expired and that the department definitely feels that the earlier decision of CEGAT is not applicable to the import made under the present policy. It is also stated that the importers are one time importers and if the items are ordered to be released, it will be very difficult to take suitable action against the importers in the event of the department getting an order from the appellate authority in favour of the department. Hence, in the interest of justice and to safeguard the interest to department, the petitioners may be directed to deposit the redemption fine and penalty amounts. The petitioners must also be directed to pay interest at the rate of 15% per annum on the customs duty payable. 8.I am unable to countenance anyone of the contentions of the learned counsel for respondents. The appellate authority by his order dated 26-9-1995 on a careful analysis and consideration of the entire materials placed before him has arrived at a conclusion that arecanuts are dry fruits. He followed the earlier decision of the CEGAT, South Regional Bench in the case of M/s G.K. Enterprises v. Collector of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear of punishment. This is a clear example of the department disregard of the orders of the statutory authorities. As pointed out by learned Senior Counsel the petitioners have no other effective alternative remedy except to approach this Court by invoking the jurisdiction under Article 226 of the Constitution of India. The goods landed during the second week of July, 1995 is even now lying within the customs frontier. If the goods are allowed to remain there, the goods will definitely deteriorate further in value. This apart, demurrage and container charges have to be paid by the petitioners for no fault of theirs. The petitioners have stated that they have suffered huge loss by way of deterioration. 9.In my opinion, the Additional Commissioner of Customs is not right in withholding the goods when they were directed to be released on licence bond. The inaction on the part of the third respondent in not releasing the goods and not even replying to the letters and notices sent by the Counsel are to say, the least improper. I have also gone through the order passed by the Customs, Excise and Gold Control Appellate Tribunal which was in turn followed by the appellate authority. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Import Policies AM 1983-84, AM 1984-85 and AM 1985-88. In all the three policies 1983-84, 1984-85 and 1985-88, the import of dry fruits excluding cashew nuts and dates is allowed against licences issued to dealers engaged in that trade. The contention of the appellants that the Import Policy for the year 1983-84, or 1984-85 or years 1985-88 permitted import of dry fruits by a trade under OGL therefore, appears incorrect." I am unable to accept the view taken by the Bombay Tribunal with respect and prefer to accept the view taken by the G.K. Enterprises v. Collector of Customs, Madras rendered by the South Regional Bench which is a very relevant one. Mr. Jayachandran, learned ACGSC cited a Division Bench Judgment of our High Court in Collector of Customs, Madras v. Madras Electro Castings P. Ltd. - 1994 (71) E.L.T. 646 wherein the Bench observed that the jurisdiction under Article 226 of the Constitution of India cannot be exercised only for the purpose of granting relief of interim nature, when the main matter is to be decided by another authority and further consequence of granting such interim relief is to infrastructure the very order of confiscation. In this context, I would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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