1989 (10) TMI 55 - SC - Customs

Appeal Dismissed: Upholding Bombay High Court Decision on Illegal Importation of Isoxamine

The appeal was dismissed, upholding the decision of the Bombay High Court's Division Bench and the Collector of Customs. The court affirmed the ... Whether the Collector of Customs had exceeded his jurisdiction in confiscating the goods and imposing penalty for the first time in exercise of his revisional jurisdiction under Section 130(2) of the Act? Held that:- When the Collector of Customs could confiscate the goods and impose penalties only in exercise of his original jurisdiction under Section 122 read with Section 124 of the Act, surely, the appellant had a right of appeal against such confiscation and imposition of penalty. At this stage, we may notice a very significant fact that in the impugned order of the Collector dated November 14,1979, it has been specifically stated at the very outset that an appeal against the order lies to the Central Board of Excise and Customs, New Delhi, within three months from the date of its despatch. It cannot, therefore, be said that the appellant was misled, as the order was purported to have been passed by the Collector of Customs in exercise of his revisional jurisdiction. The appellant, however, did not avail itself of its right of appeal under Section 128(a) of the Act and, accordingly, its complaint in that regard is not justified. Appeal dismissed. Issues Involved:1. Propriety of the decision of the Division Bench of the Bombay High Court.2. Validity of the industrial licence for the import and use of isoxamine.3. Jurisdiction of the Customs Authorities to confiscate the goods.4. Legality of the declaration made by the appellant.5. Jurisdiction of the Collector of Customs in confiscating goods and imposing penalties.6. Right of appeal against the order of the Collector of Customs.Issue-wise Detailed Analysis:1. Propriety of the Decision of the Division Bench of the Bombay High CourtThe appellant challenged the decision of the Division Bench of the Bombay High Court, which dismissed the appeal against the judgment of the learned Single Judge. The Single Judge had dismissed the writ petition challenging the order of the Collector of Customs, who directed the confiscation of imported goods and imposed a fine and penalty.2. Validity of the Industrial Licence for the Import and Use of IsoxamineThe appellant's industrial licence permitted the import of isoxamine for two years from the date of the licence (April 23, 1974) for the manufacture of SMX. After this period, the appellant was required to use indigenous materials. Despite this, the appellant imported isoxamine in 1979 without obtaining an extension or permission.3. Jurisdiction of the Customs Authorities to Confiscate the GoodsThe appellant argued that the goods were imported under a valid Open General Licence (OGL) and that the Customs Authorities had no jurisdiction to confiscate them. However, the court held that merely importing under OGL was not sufficient. The appellant also needed to comply with Paragraph 6 of Appendix 10 of the Import Policy 1978-79, which required a valid declaration of Actual User status.4. Legality of the Declaration Made by the AppellantThe appellant declared itself as an Actual User, affirming that its registration had not been cancelled or otherwise made inoperative. The court found this declaration false because the industrial licence did not permit the use of imported isoxamine after two years. Therefore, the appellant did not meet the conditions of Paragraph 6 of Appendix 10, rendering the importation illegal.5. Jurisdiction of the Collector of Customs in Confiscating Goods and Imposing PenaltiesThe appellant contended that the Collector of Customs, in his revisional jurisdiction under Section 130(2) of the Customs Act, could not confiscate goods or impose penalties for the first time. The court clarified that the Collector had both original and revisional jurisdiction. Although the order mentioned Section 130(2), it was a mere irregularity as the Collector had the power to confiscate goods and impose penalties under Section 122 read with Section 124 of the Act.6. Right of Appeal Against the Order of the Collector of CustomsThe appellant argued that the order deprived it of the right to appeal under Section 128(a) of the Act. The court noted that the impugned order itself mentioned the right to appeal to the Central Board of Excise and Customs within three months. The appellant did not avail itself of this right, making the complaint unjustified.Additional ContentionsThe appellant's argument that the option to pay a fine in lieu of confiscation implied a right to use the imported material was rejected. The court clarified that paying the fine allowed clearance of goods but did not permit their use in violation of the industrial licence. The increase in manufacturing capacity from 18 to 45 tonnes per annum was also deemed irrelevant as there was no permission to use imported isoxamine.ConclusionThe appeal was dismissed, and the court upheld the order of the Collector of Customs, confirming the confiscation of goods and the imposition of fines and penalties. No order as to costs was made.