Cawasji Behramji and Co. vs T.J. D''lima

This is a petition filed by Messrs. Cawasji Behramji & Co., carrying on business of ship chandlers and canteen suppliers.

It would appear that in the month of October, 1970 the petitioners had imported into India for re-export as ship stores or otherwise a consignment of 190 sunglasses.

When the said goods arrived at Bombay the petitioners prepared the necessary Bill of Entry for Bond dated 20th October, 1970 and made and subscribed to the following declarations on the said Bill of Entry :-

"These goods are imported and declared on this Bill of Entry being W/H u/s 59 of the Customs Act, 1962, for re-export as ship stores or otherwise to a country outside India."

After the signature of the Petitioners'' partner the following words appear -

"Savings 11(d) Import Trade Control Order No. 17/55 of 1955".

The Customs authorities appear to have felt that the goods imported viz., sunglasses, could not be considered as bona fide ship stores intended to be covered under the Savings 11(d) in terms of which the clearance had been sought. In this view of the matter the Customs Authorities issued a show cause notice to the Petitioners and in the events that happened the said goods were, by an order dated 30th December, 1970, confiscated u/s 111(d) of the Customs Act, 1962, read with Section 3 of the Imports and Exports (Control) Act, 1947. The Petitioners, were therefore, compelled to file this writ petition.

It requires to be noticed that when the proceedings before the Assistant Collector of Customs, respondent No. 1, were going on, the attention of respondent No. 1 was invited to judgment of the Bombay High Court in Miscellaneous Petition No. 707 of 1967 of my brother Kania J., who in a somewhat similar case had held that tape-recorders could be considered as ship stores. The Customs Authorities were not satisfied with the Judgment of Kania J. and accordingly went into appeal.

It may be noted that in the order of confiscation in the present petition the Assistant Collector of Customs, respondent No. 1, has recorded that as the Department had not accepted the decision of Kania J., they had preferred an appeal against it that there was a stay order and, therefore, it was not necessary for the Assistant Collector of Customs to follow that decision.

On the 8th of January, 1973 the appeal Court consisting of Chief Justice Kantawalla and Tulzapurkar J. delivered their judgment in Appeal No. 19 of 1970 filed by the Customs Authorities against the judgment of Kania J. in Miscellaneous Petition No. 707 of 1967.

My attention has been drawn to the said judgment and it is important to notice that Their Lordship so the appeal Court have decided that matter on a wider aspect than that on which Kania J. decided the Miscellaneous Petition No. 707 of 1967 before him. While Kania J. had held that the tape-recorders could be said to be ship stores and, therefore, the order of confiscation in relation thereto was bad, their Lordship of the Appeal Court on a construction of the relevant provisions held as follows :-

"...... If the imported goods are bonded on arrival for re-export as ships stores or otherwise to any country outside India, except the specified countries, then no offence has been committed by the petitioners by reason of failure to have an I.T.C. licence. For deciding this question it is unnecessary to consider whether the goods in question are ships stores. The relevant words are ''Nothing in this Order shall apply to the import of any goods ..... imported and bonded on arrival for re-export as ships stores or otherwise to any country outside India .....'' This clause contemplates re-export as ships stores or otherwise to any country outside India. The words ''or otherwise'' are very comprehensive words and if the goods are bonded on arrival for re-export to any country outside India, even thought they may not happen to be ships stores, they would be covered by these words. As the genuineness of the declaration made on the bills of entry by the petitioners is not disputed, it is apparent that the imported goods are meant for re-export to any country outside India. Once that is so, it is immaterial to consider whether they are ships stores or not. As they are meant for re-export to any country outside India, in view of the provisions of clause 11(1)(d) it was unnecessary for the Petitioners to have a licence or a customs clearance permit as provided in clause 3 of the Imports (Control) Order, 1955. As no licence was necessary for import of these goods the question of commission of an offence under the Customs Act, 1962, does not arise and the orders passed for confiscation of the goods by the Customs Authorities are liable to be set aside".

In view of the decision of the appeal Court the present petition must be allowed.

The order of confiscation dated 30th December, 1970, Ex. "C" to the petition is set aside. The respondents are directed to proceed with the application of the petitioners for bonding the goods in question under Sections 59 and 60 of the Customs Act, 1962, in accordance with law. The respondents are also directed to issue all such documents under certificates as may be necessary, and required by the petitioners by reason of the said goods having been confiscated and detained on the basis of the order dated 30th December, 1970, which has now been quashed.

Respondents will pay the costs of the petitioners.