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TMI Blog1970 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Government of India and contained Government's policy and directives as to import and export framed under the Imports and Exports (Control) Act, 1947 and the Import Control Order, 1955, issued thereunder. 3.The said Hazarimal imported in all 46 cases of electric bulbs, 42 of which contained bulbs of 12 of 16 volts, 21 candle power, and the rest of 6 to 7 volts of 3 candle power from concern in Japan. The goods arrived in Madras port of June 5, 1957. A Bill of Entry for clearance of the goods was filed. But the Assistant Collector of Customs did not permit clearance of the goods on the ground that they were auto-bulbs and were not covered by Entry 38A(f) for which only the licence was granted. His view was that they fell under Entry 38A(e). On August 14, 1957, he issued a show cause notice. The said Hazarimal filed his reply to the said notice on October 17, 1957. The Assistant Collector, not satisfied with the said reply, passed an order that the said goods fell under Entry 38A(e) and not under Entry 38A(f), that they were consequently imported without a valid licence and directed their confiscation under Section 167(8) of the Sea Customs Act. He, however, gave option to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s : "_ _ _ _ _ _ _ _ (ii) The under mentioned types of lamps can be imported up to 15% of the face value of basic quota licence or up to Rs. 500/- whichever is higher _ _ _ _ _ _ _ ". 5.The said Hazarimal did not file any appeal against the impugned order, but approached the High Court by way of a writ petition for certiorari. The ground on which the said order was sought to be quashed was not that the opportunity of being heard given to him was not adequate but on the ground that the impugned order suffered from an error apparent on the face of the record, and therefore, was liable to be quashed. The learned Single Judge, who heard the writ petition in the first instance, accepted the contention and quashed the order holding : (1) that it was an apparent error on the part of the Assistant Collector to rely on the fact that Hazarimal had not appealed against the said warning as there could be no appeal against such warning, (2) that it was an error on the part of the Assistant Collector to have thought that the said clarification did not amount to a reversal of the Customs's classification of the import of 1955 under Entry 38A(e), and (3) that it was also an error on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed "the previous history". No attempt, however, was made to show that goods imported in the year in question were the same or similar to the goods imported in the previous year and in respect of which the clarification was obtained. That circumstance is important because the said clarification was given on an examination of certain samples sent by Hazarimal to the Chief Controller and on which examination that authority had pronounced the goods to be covered by Entry 38A(f). That clarification, however, could not be determinative of the goods in question because there was no evidence at the time of the hearing of the writ petition that the goods in question were similar to those imported in the previous year or to the said samples. Strangely, the said Hazarimal did not this time obtain a similar clarification, which he could have obtained in view of the finding by the Customs that the goods were auto-bulbs, and therefore, did not fall under Entry 38A(f). Indeed, the said Hazarimal had disabled himself from having any comparison made between the goods for which the said clarification was obtained in the previous year and the goods in question, for, as soon as he had the goods cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector could not rely on this restriction because the licence did not contain any such restriction, nor was such a restriction relied on in the show cause notice. The clarification clearly stated that in view of Clause (ii) of the remarks column in Entry 38A(f) import of goods to the extent of 15% only would be permissible. The licence, no doubt, did not contain any such restriction. But if the licence was in respect of goods falling under that entry, the restriction in that entry would govern the licence as one of the conditions upon which import could be made under it. The restriction of 15% stated in the clarification could not be relied on in the show cause notice because the Customs' case in the notice was that the goods were auto-bulbs falling under Entry 38A(e), for the import of which the licence did not apply. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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