Babu Varghese vs Union of India

Sat Pal, J.

(1) In the wake of Gulf War which began in the first week of August 1990, a large number of Indian repatriates filed from Iraq/Kuwait and came to the Indian border by land route through Turkey/Iran and Pakistan .

(2) Sometime in the middle of September, 1990, it was brought to the notice of the Government of India that a large number of such repatriates who fled from Iraq/Kuwait with virtually nothing in their possession except the car in which they escaped from the war zone. In view of the extreme financial distress and having driven down over a distance of 20000-25000Kilometers over land, the Government of India issued a notification dated 23/10/1990 u/s 25(1) of the Customs Act, 1962 permitting such persons to import the cars without payment of duty subject to the following conditions:-

(I)the importer produces evidence to the satisfaction of the officer not below the rank of a Deputy Collector of Customs that )-(a) the said motor car was registered with the appropriate authorities at Kuwait or Iraq on or before the 31st day of July ,1990 in the name of the importer;(b) the importer has travelled from Iraq or Kuwait in the said motor car before entering the land customs station at Attari:(ii) the importer shall not part with the motor car within a period of 5 years from the date of importation by way of sale, transfer, loan or in any other manner and the importer gives an undertaking to this effect to the Assistant Collector of Customs, Amritsar at the time of clearance of the car;(iii) the importer shall inform the Assistant Collector of Customs or Central Excise having jurisdiction over the place where the importer is going to reside in India by a registered letter or by personally delivering the letter in his office against acknowledgement, that the importer has brought the said motor car to the said place availing of the benefit of this Notification, giving full particulars of the motor car with or without accessories and shall undertake to produce the motor car before the said Assistant Collector as and when required by him to verify the possession of the motor vehicle with the importer;(iv) the importer at the time of clearance gives a declaration to the Assistant Collector of Customs, Amritsar that no other motorcar has been imported by them or any member of his family in terms of this notification."

(3) It will be seen from the above that the importer of such car shall not part with the vehicle within a period of 5 years from the date of importation by way of sale, transfer, loan or in any other manner.

(4) Subsequently, the Government of India began to receive representations from another category of Indian repatriates from Iraq/Kuwait who had shipped their cars by sea to India. The Government of India considered the cases of these repatriates and considering them as a separate class gave some concessions vide instructions dated 29/10/1990, a copy of which isAnnexure-R2 to the counter-affidavit filed on behalf of the respondents. In terms of these instructions the persons belonging to the aforesaid second category were permitted to import the car duty free on temporary basis on the condition that they will re-export the same after a period of six months or such other extended period as permitted on case to case basis as decided by the Principal Collector of Customs.

(5) The petitioners in all these writ petitions belong to the second category of Indian repatriates who had shipped their cars by sea to India. In these writ petitions the petitioners had claimed the benefit in terms of the notification dated 23/10/1990 by which the Indian repatriates who had come to India by land route through their cars were allowed to import these cars without payment of any duty.

(6) Mr. Shiv Kumar, learned Counsel for the petitioners contended that the petitioners who are also Indian repatriates from Iraq/Kuwait have been discriminated inasmuch as those Indians repatriates who had come to the Indian border by land route in their respective car have been permitted to import the car without payment of any duty but the petitioners who had shipped their car by sea to India have not been allowed to import the car without payment of duty though they are also prepared to abide by the terms and conditions stated in the notification dated 23/10/1990. He, therefore ,contended that the action of the Government of India in not permitting them to import their cars without payment of duty is discriminatory and vocative of Article 14 of the Constitution of India.

(7) On a consideration of the matter we find no merit in the contention raised by the learned Counsel for the petitioner. As stated in the counter affidavit filed on behalf of the respondents the Indian repatriates who had come to Indian border by land route through Turkey/Iran and Pakistan in their cars belong to a separate category and these persons were in extreme financial distress and had driven over a distance of 20000-25000 kilometers over land; whereas the petitioners who had shipped their cars by sea to India belong to another category and they could not be classified under first category of Indian repatriates as these persons had been able to send their cars by sea and were not in the same financial distress as the persons of first category. In view of this fact we are of the view that the petitioners who belong to the second category of Indian repatriates were not similarly placed as the persons of first category .Thus in these cases, there is no violation of Article 14 of the Constitution of India.

(8) During the course of arguments we were informed by the learned Counsel for the petitioners that all the petitioners have now gone back to Iraq/Kuwait. As stated hereinabove one of the conditions mentioned in the notification dated 23/10/1990 was that the importer shall not part with the motor car for a period of 5 years from the date of importation by way of sale, transfer, loan or in any other manner. Assuming for the sake of argument that the notification dated 23/10/1992 is applicable to the petitioners, even then they will not be entitled to any relief under extraordinary writ jurisdiction because having gone back to Iraq/Kuwait they have parted with their respective cars either by way of loan or in any other manner and have thus contravened one of the conditions mentioned in the said notification .

(9) In view of the above discussion we find no merit in these writ petitions and accordingly all these writ petitions are dismissed in liming.

(10) However, we give two months time to the petitioners to export the imported motor car. without payment of Customs duty, failing which the respondents would be well within their rights to take suitable action against the petitioners.