Lalit Bhaichand Ravani vs Union of India and others

Rule. Mr. Pochkhanwala waives service of notice. Rule heard by consent.

By the present petition the petitioner is challenging the action of the respondents who are the Customs Authorities of Bombay in not allowing the clearance of certain goods described as artificial fur cloth though the bill of entry filed by the petitioner for clearance has been assessed and full duty has already been paid. Admittedly the bill of entry describes the goods covered by that bill as artificial fur cloth. Admittedly again it was so assessed by the authorities and customs duty on the same has assessed by the authority has been paid by the petitioner. The petitioner paid the duty on 20th December 1986. Subsequently, however, when the petitioner went to take delivery of the goods respondent No. 5 in this petition, namely, the Assistant Collector of Customs in charge of Docks, stopped the release of the goods by ordering that the goods should be examined and he would pass subsequently the necessary order.

The petitioner has now approached this Court under Article 226 of the Constitution and has given the history of the activity of import carried out by him. He has stated that the goods which are under import are the same or similar to the ones which he had imported earlier under the same description, namely artificial fur cloth. To the petition certain opinions given earlier on the nature of the product imported by the petitioner have been annexed. For example, there is a technical opinion dated 12th April 1983 given by the Deputy Chief Chemist and there is also another opinion dated 23rd June 1984 by another officer with designation of Chemical Examine Grade I. Mr. Kantawala appearing in support of this petition has relied upon these opinions not so much for establishing in this case that what has been imported is artificial furcloth but for showing the tests which the authorities have consistently applied while determining whether a particular fur is artificial fur cloth or not. The first opinion of the Deputy Chief Chemist has discussed the nature of what is called the artificial fur and has noted that artificial furs are made with a base of either leather, woven fabric of other material on which the fibre/hairs are gummed or sewed, the material under reference being a knitted fabric in which the piles are introduced during knitting itself and later falls outside the scope of Chapter 43.02. The report in the test memo which was sent to him for CTA classification purposes was to indicate whether it was artificial fur. The Deputy Chief Chemist noted that since the literature indicated the trade acceptance as fur fabric and this being a synthetic or imitation fur fabric, perhaps the description as artificial fur cloth is acceptable for licence purposes as reported by SASMIRA (Silk Mills Research Association). In other words, this office accepted a commodity as artificial fur cloth if the material is a knitted fabric in which the piles are introduced during knitting itself or for that matter during the process of weaving. Similar is the opinion given by the Chemical Examiner Grade I in his report on 23rd June 1984.

Mr. Kantawala also relies upon the definition of "pile fabric" given in Encyclopedia of Textiles, Third Edition, published by the Editors of American Fabrics and Fashions Magazine. "Pile fabric" has been described in this Encyclopedia as a material that, to some degree, resembles fur. The cloth may be cut or uncut. It has a nap on the face of the goods or it can be made so that there will be long loops in the uncut type of material. Pile of cloth may be soft or harsh in feel, and an appealing appearance. Then it is stated as follows :-

"Some common pile cloths include terry toweling ,furniture covering, velvet, velveteen, panne velved, cordury, runners, rugs and carpets."

In reply to the petition there is an affidavit of the Assistant Collector of Customs, Group E, wherein it has been contended that what has been imported by the petitioner in the instant case is not artificial fur cloth but velvet. It has been submitted that commercially and in the market velvet is known separately and distinctly as such and it is not equivalent to artificial fur cloth which alone is allowed to be imported whereas import of velvet is totally banned. However, the Chemical Examiner for Customs was given a test memo in respect of the goods imported by the petitioner under the present bill of entry. A copy of the report of the said Chemical Examiner has been annexed to this affidavit. Three questions, it seems, were marked for his opinion originally : (i) nature of the composition, (ii) deniers or count of the material, (iii) whether artificial fur cloth. However, the third point on which he was originally asked for opinion has been struck out and ultimately, therefore, the Chemical Examiner by his report dated 9th January 1986 has given his finding on the two points which were ultimately left to him for determination, namely, the nature of the composition and the deniers or count of the material. The finding of the Chemical Examiner is that the sample is cut piece of dyed, knitted pile fabric. It is composed entirely of polyester filament yarns. It has short piles (of approximate length of 4 mm). However, the deniers of the polyester yarn could not be determined as the sample was so well knitted.

Mr. Pochkhanwala appearing for the respondents has referred to this report and after relying upon the affidavit referred to above has described the commodity imported by the petitioner as velvet. Reliance has also been placed by Mr. Pochkhanwala for the correct meaning of ''velvet''. It has been contended by him that pile fabric is the larger genus of which artificial fur cloth and velvet are the two species. Therefore, they cannot be equated.

After hearing both the learned Advocates I am of the opinion that prima facie velvet cannot be exchanged from the description of artificial fur cloth. Reliance on the reports of the two Chemical Analysers placed by the petitioners, which is not unjustified, shows that in order to find out whether a particular commodity is artificial fur cloth, one test is to find out whether on the fabric, artificial filaments are fixed either in the texture itself at the time of weaving or later. In other words, it is a cloth on which artificial yarn or filaments are engrafted to give a soft appearance. It cannot be said that velvet does not answer this description or his test. It has been urged on behalf of the respondents that in the trade parlance, velvet is understood as a separate commodity by itself and is never understood as an artificial fur cloth. This itself in my opinion, at this stage is not conclusive because the genus of artificial fur cloth can undoubtedly include the species of velvet. Moreover, the reliance upon the trade terms or commonly accepted meaning of the term is more relevant when the question of charging the import duty on the commodity arises. In the instant case, the question is whether this particular commodity, namely, velvet, which I accept for the moment has been imported by the petitioner, is excluded from the description or from that class of the commodity known as artificial fur cloth. I am satisfied that prima facie to accept the contention of the petitioner that is justified viz. the authorities have always accepted and acted upon the test which is disclosed in the two opinions on which reliance has been placed by the petitioner. This opinion has not been displaced by the report of the Chemical Examiner for the Customs dated 19th January 1987 which is annexed to the affidavit in reply. There is no reason why the petitioners should not be allowed to clear the goods. However, certain orders will have to be passed which will not prohibit the respondents from taking any action if they are so inclined u/s 124 of the Customs Act.

In the result, this petition is allowed. Rule is made absolute in terms of prayer clause (a) subject, however, to the following conditions :-

(1) The petitioner shall at the time of clearing the goods give bank guarantee to the Collector of Customs to the extent of 25% of the C.I.F. value and personal bond for the remaining 75% of the C.I.F. value.

(2) In view of the fact that the petition was filed on 15th January 1987 and could not be disposed of till today, it is fit and proper that the petitioner should be given a detention certificate for the said period. Accordingly it is directed that the respondent shall give detention certificate to the petitioner for the period from 15th January 1987 to 29th January 1987.

No order as to costs.