Binani Brothers Private Limited vs Collector of Customs and Others

Susanta Chatterji, J.—The present Rule was issued on 24.12.80 at the instance of the writ petitioner Messrs. Binani Brothers Private Limited, a Company having its registered office at No. 43, Strand Road, Calcutta praying inter alia for a Writ of Mandamus commanding the respondents not to impose additional duty and/or countervailing duty u/s 3(1) of the Customs Tariff Act, 1975 on the importation of non-ferrous metal scraps and not to demand and/or insist on furnishing of Bond and bank guarantee for payment of the Additional Duty and/or Countervailing Duty before clearance of the goods and further directing the respondents to release the bank guarantee and/or Bonds furnished in this behalf and also directing the respondents to refund the sum of Rs. 15,430.52p. in respect of which an application for refund dated 1.8.79 was made and other consequential reliefs. It is stated that the petitioner imports the scraps of zinc, lead, brass, copper, nickel, silver under Open General Licence and on the basis of Import Licence obtained from the Competent Authorities and the goods have been released on payment of the duties leviable under the provision of the Customs Tariff Act, 1975. It is further stated that in respect of importation of 81 Drums of brass scraps (11.598 Metric Tons) per S.S."Sam Houston" Rot 129/27 under the Bill of Entry No. I. 846 of 27th March, 1979 paid Countervailing Duty @ 8% amounting to Rs. 15,430.52p. in respect of said consignment for the purpose of clearance of the said goods. The said imposition was made under Item 58 of the First Schedule of the Customs Tariff Act, 1975. It is alleged that since April, 1979, the Customs Authorities were insisting upon furnishing of a Bond in favour of the President of India through the Collector of Customs in respect of importation of the said non-ferrous scraps giving an undertaking that pending finalisation of the assessment and/or completion of further enquiries/realization of the countervailing duty @ 8% the goods were allowed to be cleared by the Customs Authorities with a specific condition that the petitioner will be bound to pay the differences of duties between finally assessed duty and duties provisionally assessed in respect of the goods. According to the petitioner, the said Bonds have to be furnished in order to clear the goods without actual payment of the said countervailing duty in respect of the said scraps. It was represented to the petitioner by the Customs Authorities that the question of payment of Countervailing Duty on the importation of scraps was under considerations of the higher authorities and that only after the higher authorities decide the question, the matter will be finalized and pending finalisation the petitioner and others were directed to go on furnishing Bonds in respect of each and every importation of scraps and that as a matter of fact, the petitioners and others were and are taking delivery of the goods on furnishing such Bonds for payment of the Countervailing Duty, if raised, ultimately on the basis of the consideration of the Higher authorities. The grievance of the petitioner is that through the Bharat Chambers of Commerce, its representations were made before the respondent Nos. 1 and 2 for not insisting upon furnishing the Bonds in respect of importation of non-ferrous scraps in view of the decision of the Appellate Collector of Customs and in view of the provisions of the Customs Tariff Act Since nothing has been done by the respondent authorities, the petitioner being aggrieved has come to this Court for reliefs as indicated above on the grounds that in view of the provisions of Section 3(1) of the Customs Tariff Act, 1975, the respondents have no authority and/or jurisdiction to claim for additional and/or Counter veiling Duty on the importation of the non-ferrous metal scraps. In view of the decision of the Appellate Collector of Customs, copy of which is Annexure "C" to the writ petition, the respondent Nos. 1 and 2 are acting illegally and/or without jurisdiction and under curious circumstances, the petitioner has to furnish Bond and the matter may be adjudicated by this Court for granting reliefs as prayed for.

The writ petition is contested by the respondent authorities by controverting the allegations made by the petitioner. It is placed on record that the steps taken by the respondents are neither contrary to nor inconsistent with the provisions of law. Pending effective adjudication, the importers are permitted to release the goods on furnishing Bonds. Subsequently, upon effective adjudication, if it is found that the proper duties have been paid, the Bonds have been released. In the event, it is found that a proper duty has not been paid, the Bond is enforced and by way of proper security, this arrangement is going on. In the instant case, the petitioner has prayed in general terms for abolishing the system of furnishing of Bond which is wholly unwarranted and uncalled for.

The petitioner, however, filed an affidavit-in-reply reiterating the original stand taken in the writ petition. The present writ petition is heard along with another case filed by Messrs. Pragdas Mathuradas, a partnership firm having its office at No. 43, Strand Road, Calcutta, Similar contentions have been raised and by this Judgment both the cases are disposed of.

Having perused the materials on record, and considering the affidavits filed by the respective parties, it appears that the petitioner has laid much emphasis upon the Annexure "C" as to the order made by the Appellate Collector of Customs allowing 8(eight) appeals and by setting aside the order of the Collector of Customs. The said appeals are related to claims for refund on re-assessment of the imported articles. The Appellate Authority considered the claims for refund on re-assessment of the imported articles. The ratio of the said order cannot be generalized and the petitioner cannot come to the writ Court for necessary declarations that no Bonds are required to be furnished by the petitioner and/or others before effective adjudication as to the payments of duties and countervailing duties under the Customs Act before effective adjudication. By way of abundant precaution and in order to dispel any doubt importers are asked to furnish bonds before the release of the goods where a doubt is raised on the quantum of required duty. Claim petitions are entertained and those are adjudicated in the proper perspective and the orders of Collector (Customs) are open to appeal before the Appellate Authority. Accordingly, this Court does not find to grant any relief in the general terms that there is no necessity to insist upon furnishing of Bonds as the situation may arise.

Considering further the materials on record, this Court is not convinced that any act done and/or caused to have been done by the respondents is irregular and illegal necessitating interference by the Writ Court.

For the foregoing reasons, this Court is not inclined to interfere with the matters. Finding no merit in the writ petitions, Rules are discharged. All interim orders are vacated. There will be no order as to costs.