TMI Blog2000 (9) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner company entered into contracts with various Indian buyers for shipment of 100% Mulberry Raw Silk whereunder different consignments under 31 Bills of Lading were shipped from Hong Kong and Singapore. In the Bills of Lading the consignor was the petitioner and the consignee was "To order" of the petitioner, as notified parties were the respective Banks together with respective Indian buyers. About 51.300 M.T. of the aforesaid goods came to be landed at Kandla Port in March 1998, which were to be cleared by Indian importers, viz.: Usha Soap Chemicals, Calcutta, R.K. Sports, Calcutta, Paramount International, Calcutta and Sankalp Lefabs, New Delhi. The above named Indian importers/buyers did not get the documents sent by the petitioner to their Bankers, retired. The said Indian parties did not make the requisite payment to their Bankers by way of sale consideration of the aforesaid goods and therefore the petitioner had to recall the documents. 6.The petitioner company wrote to the shipping company to amend the Bills of Lading so that the new buyers who became ready to purchase the above mentioned goods can take the release of the documents from the Bank. The shipping company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Commissioner without notice and hearing to the petitioner company recorded his reasons and came to the conclusion that 100% Mulberry Raw Silk was imported without a valid licence and the import was therefore illegal and unauthorised. The Commissioner further held that there is no provision under the Customs Act, 1962 to grant permission to the exporter for reshipment of the goods which are found to have been imported illegally and unauthorisedly. 10.After receiving the order dated 14-12-1998 whereby the Commissioner refused permission to the petitioner company for reshipment of the goods, the petitioner filed this petition on 9-4-1999. 11.Before filing of this petition, without any notice or knowledge of the petitioner company, the Commissioner by impugned orders dated 16-2-1999, 17-2-1999, 1-3-1999 and 8-3-1999 (marked collectively as Annexure (G) confiscated all the goods of the petitioner company received under various consignments. This Court on 12-4-1999 granted interim relief to the petitioner by restraining the respondent Custom Authorities from dealing with, disposing and/or alienating and/or selling the aforesaid goods till the finalisation of the captioned writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity of silk and the investigation/inquiry is still in progress. The investigation so far made by the Department shows that all the consignees named as Indian buyers were found to be fictitious. It was thus a case of illegal import of Raw Silk and, therefore, there was no requirement in the Customs Act to hear the exporter or the owner before the seizure and confiscation of the illegally imported goods. It is also submitted that there is no provision in the Customs Act to permit the exporter to reship the goods when they are found to have been illegally imported. 16.After hearing the learned Counsel appearing for the parties and on going through the contents of the impugned orders of confiscation passed and the orders passed pursuant to the earlier order of the Division Bench of the Court, we have come to a definite conclusion that there is a fatal procedural infirmity in the action of the Custom Authorities as they failed to give notice and opportunity of hearing to the exporter who is undisputedly the owner of the goods. 17.The provisions of Section 110 authorising the seizure of goods, as a step for confiscation, in its relevant sub-sections (1) and (2) read as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not known. That there was an attempt on the part of the exporter to illegally import the goods was a conclusion which could not been have arrived at ex-parte without notice and grant of opportunity of hearing to the exporter. It is not the case of the Department that the exporter, who is a foreign based company, was not available for grant of opportunity. As the facts have been stated above, the petitioner company had been repeatedly approaching in writing and through its representation the Custom Authorities to grant them permission for reshipment of the goods or dispose of the goods to other Indian buyers possessing a valid import licence for the goods. The petitioner company had also filed a writ petition in this Court and obtained an order directing the respondents to consider and pass orders on its pending applications for grant of permission for reshipment of goods. Ignoring all the above facts, the Custom Authorities felt content by sending notices only to the consignees of the goods which according to the department's own case, based on their investigation, were non-existent and fictitious parties. In such a situation, it was more necessary and in fact a mandatory require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for the price of goods and for such damage as he may have suffered. This would not be conducive to international trade. We can well imagine situations where for one or other reason, an importer chooses or fails to pay for and take delivery of the imported goods. He just abandons them. (We may reiterate that we are speaking of a case where the import is not contrary to law). It is only with such a situation that we are concerned in this case and our decision is also confined only to such a situation. Condition (ii) in sub-clause (3) of Clause 5, in our opinion, does not operate to deprive the exporter of his title to said goods in such a situation." 19.As a result of the discussions aforesaid, this petition must succeed and it is therefore allowed. The impugned orders dated 14-12-1998 (Annexure H) and cumulatively marked as (Annexure G) dated 16-2-1999, 17-2-1999, 1-3-1999 and 8-3-1999 of confiscation of the imported goods are all hereby quashed. The respondent authorities are directed to restore the goods seized and illegally confiscated to the petitioner company. It is however made clear that the Custom Authorities are at liberty to make further investigation into the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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