Case: Hazarimal K. Shah Vs. Collector of Customs, Madras

were two apparent errors of law in the Assistant Collectors order, in that, he had relied on (a) a warning in respect of the previous years consignment, and (b) a restriction on future imports of similar goods to the extent of 15% of the face value mentioned in the licence. The contention was that both these facts were not sustainable. As regards (a), there can be no doubt that the order of the Assistant Collector contained a warning inspite of the said clarification that in future import should not be made of similar goods under the licence possessed by Hazarimal. Inspite of the correspondence by Hazarimal with the Collector the warning was never withdrawn nor cancelled. The goods were allowed clearance presumably because of the said clarification but only as a "special case". Therefore, it was not as if there was no such warning in the order passed by the Customs in the previous year. But the real question before the High Court was not whether there was such a warning or not but whether the said clarification applied to goods in question. In other words, whether the goods were the same as the samples from the previous consignment on which the clarification was issued by the Chief Controller. In the absence of any proof that they were, the High Court obviously could not say that they were governed by the said clarification, and that, therefore, the goods did not fall under Entry 38A(e), as the Assistant Collector had ruled, or that there was any apparent error in that finding. It appears that except for relying on the said clarification no attempt was made at any time to establish that the goods were similar to those of the previous years imports and therefore, could not be classified as auto-bulbs. 9. As regards (b), assuming that the present goods were governed by the said clarification, the Chief Controller had stated therein that though the samples fell under Entry 38A(f), imports of such goods could be made only to the extent of 15% . The learned single Judge was of the view that the Assistant Collector could not rely on this restriction because the licence did not contain any such restriction, nor was such a restriction relied on in the show cause notice. The clarification clearly stated that in view of Clause (ii) of the remarks column in Entry 38A(f) import of goods to the extent of 15% only would be permissible. The licence, no doubt, did not contain any such restriction. But if the licence was in respect of goods falling under that entry, the restriction in, that entry would govern the licence as one of the conditions upon which import could be made under it. The restriction of 15% stated in the clarification could not be relied on in the show cause notice because the Customs case in the notice was that the goods were auto-bulbs falling under Entry 38A(e), for the import of which the licence did not apply. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the record. 10. The contention next was that the Division Bench was in error when it observed that the goods in question were not proved to be similar to those in respect of which the said clarification was obtained as the Assistant Collector in his order had clearly admitted that they were similar. This contention cannot be upheld, for, it is made on an erroneous construction of the impugned order. The order in the first place clearly held that the goods were auto-bulbs. Upon that finding there was no question of the said clarification being applicable to them. Alternatively, the order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous years import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by Counsel. 11. Lastly, it was urged that the Assistant Collectors order was vitiated by his failure to observe that rules of natural justice, in that, he had omitted to place materials obtained by him on examination of the goods to the said Hazarimal in the proceedings before him. No such contention was raised either in the writ petition or before the High Court at any stage. There was, therefore, no opportunity to the Customs to reply to such a contention, and therefore, we could not allow Counsel to raise the point for the first time. It was then faintly argued that the Assistant Collector had no jurisdiction to hold the goods to be auto-bulbs in view of the said clarification that the goods of the previous years import were not auto-bulbs. Assuming for the moment that the said clarification was binding on the Assistant Collector, who is the competent authority under the Sea Customs Act, no evidence was adduced that the goods in question were similar to the goods imported in the previous year or answered the samples on which the clarification had been obtained. There was, therefore, no question of the clarification being binding on the Assistant Collector. 12. In our view none of the contentions to show that the Division Bench was in error can be sustained. No error of law apparent on the face of the record has been established which could justify us to interfere with the impugned order of the Customs.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. As aforesaid, the writ petition was for a writ of certiorari to quash the said order on the ground that there was an error apparent on the face of the record.It was opposed on the ground that there was no such error and that the only real question involved in the writ petition was whether the classification of the imported goods by the Customs under Entry 38A(e) and not under Entry 38A(f) was correct.Such a question would be one of fact, and therefore, if the appellants were aggrieved by such a finding, their remedy would be an appeal provided under the ActThat circumstance is important because the said clarification was given on an examination of certain samples sent by Hazarimal to the Chief Controller and on which examination that authority had pronounced the goods to be covered by Entry 38A(f). That clarification, however, could not be determinative of the goods in question because there was no evidence at the time of the hearing of the writ petition that the goods in question were similar to those imported in the previous year or to the said samples. Strangely, the said Hazarimal did not this time obtain a similar clarification, which he could have obtained in view of the finding by the Customs that the goods were, and therefore, did not fall under Entry 38A(f). Indeed, the said Hazarimal had disabled himself from having any comparison made between the goods for which the said clarification was obtained in the previous year and the goods in question, for, as soon as he had the goods cleared on payment of the fine he had disposed them of without even retaining any samples. It was, therefore, not possible to say whether the goods in question were comparable with the goods in respect of which he had obtained clarification in the previous yearThe contention was that both these facts were not9. As regards (b), assuming that the present goods were governed by the said clarification, the Chief Controller had stated therein that though the samples fell under Entry 38A(f), imports of such goods could be made only to the extent of 15% . The learned single Judge was of the view that the Assistant Collector could not rely on this restriction because the licence did not contain any such restriction, nor was such a restriction relied on in the show cause notice. The clarification clearly stated that in view of Clause (ii) of the remarks column in Entry 38A(f) import of goods to the extent of 15% only would be permissible. The licence, no doubt, did not contain any such restriction. But if the licence was in respect of goods falling under that entry, the restriction in, that entry would govern the licence as one of the conditions upon which import could be made under it. The restriction of 15% stated in the clarification could not be relied on in the show cause notice because the Customs case in the notice was that the goods weres falling under Entry 38A(e), for the import of which the licence did not apply. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the recordThis contention cannot be upheld, for, it is made on an erroneous construction of the impugned order. The order in the first place clearly held that the goods were. Upon that finding there was no question of the said clarification being applicable to them. Alternatively, the order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous years import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by CounselNo such contention was raised either in the writ petition or before the High Court at any stage. There was, therefore, no opportunity to the Customs to reply to such a contention, and therefore, we could not allow Counsel to raise the point for the first time. It was then faintly argued that the Assistant Collector had no jurisdiction to hold the goods to bes in view of the said clarification that the goods of the previous years import were not. Assuming for the moment that the said clarification was binding on the Assistant Collector, who is the competent authority under the Sea Customs Act, no evidence was adduced that the goods in question were similar to the goods imported in the previous year or answered the samples on which the clarification had been obtained. There was, therefore, no question of the clarification being binding on the Assistant Collector12. In our view none of the contentions to show that the Division Bench was in error can be sustained. No error of law apparent on the face of the record has been established which could justify us to interfere with the impugned order of the Customs.