TMI Blog1970 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the record. he order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous year's import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by Counsel. Appeal dismissed. - 1483 of 1967 - - - Dated:- 27-2-1970 - J.M. Shelat and C.A. Vaidialingam, JJ. [Judgment per : J.M. Shelat, J.]. - This appeal, founded on a certificate, is by the legal representatives of one Hazarimal Shah, since deceased, who, prior to, his death, was carrying on business inter alia in electric goods in the name and style of J. Hazarimal and Co. The appeal is directed against the judgment and order, dated September 17, 1962, of the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges which he had been obliged to pay to the Port Trust Authorities on account of the said goods having been detained by the Customs and having thus remained in the Port Trust premises uncleared for some time. It may, however, be mentioned that the Customs had been allowed the goods to be cleared as a "special case" and after a warning to Hazarimal that he should not import similar goods in future. Even the Chief Controller in his clarification had stated that though the goods fell, according to him, under Entry 38A(f), under Clause (ii) of the remarks column to that entry import could be made only to the extent of 15% of the face value mentioned in the licence. As aforesaid, the Assistant Collector was not impressed by the explanation given by Hazarimal and held that the goods in question were not covered by Entry 38A(f) and that they were auto-bulbs falling under Entry 38A(e) for which the said Hazarimal did not possess a licence. It may also be mentioned that Hazarimal had made a representation to the Collector of Customs against the said warning but inspite of the correspondence between the two, the Collector had not cancelled nor reversed the said warning. Entry 38A(e) run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that the real question in the writ petition was whether the classification of the goods made by the Assistant Collector was correct or not, that question was one of fact, that the clarification obtained from the Chief Controller for the import of the previous year could not govern the present import in the absence of proof that the goods for both the years were the same or similar, that therefore, what the learned single Judge had called "the previous history" could not be determinative, and holding that there could be no error of law apparent on the face of the record as the classification was a question of fact allowed the appeal and dismissed the writ petition. Hence this appeal. 6.As aforesaid, the writ petition was for a writ of certiorari to quash the said order on the ground that there was an error apparent on the face of the record. It was opposed on the ground that there was no such error and that the only real question involved in the writ petition was whether the classification of the imported goods by the Customs under Entry 38A(e) and not under Entry 38A(f) was correct. Such a question would be one of fact, and therefore, if the appellants were aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the licence. The contention was that both these facts were not sustainable. As regards (a), there can be no doubt that the order of the Assistant Collector contained a warning inspite of the said clarification that in future import should not be made of similar goods under the licence possessed by Hazarimal. Inspite of the correspondence by Hazarimal with the Collector the warning was never withdrawn nor cancelled. The goods were allowed clearance presumably because of the said clarification but only as a "special case". Therefore, it was not as if there was no such warning in the order passed by the Customs in the previous year. But the real question before the High Court was not whether there was such a warning or not but whether the said clarification applied to goods in question. In other words, whether the goods were the same as the samples from the previous consignment on which the clarification was issued by the Chief Controller. In the absence of any proof that they were, the High Court obviously could not say that they were governed by the said clarification, and that, therefore, the goods did not fall under Entry 38A(e), as the Assistant Collector had ruled, or tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarification being applicable to them. Alternatively, the order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous year's import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by Counsel. 11.Lastly, it was urged that the Assistant Collector's order was vitiated by his failure to observe that rules of natural justice, in that, he had omitted to place materials obtained by him on examination of the goods to the said Hazarimal in the proceedings before him. No such contention was raised either in the writ petition or before the High Court at any stage. There was, therefore, no opportunity to the Customs to reply to such a contention, and therefore, we could not allow Counsel to raise the point for the first time. It was then faintly argued that the Assistant Collector had no jurisdiction to hold the goods to be auto-bulbs in view of the said clarification that the goods of the previous year's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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