High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 12-01-2009CORAMTHE HONOURABLE MR.S.J.MUKHOPADHAYA,ACTING CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT APPEAL No.938 OF 20081.The Commissioner of Customs (Sea Port Import), Custom House, No.60, Rajaji Salai, Chennai – 600 001.2.The Additional Commissioner of Customs, Group 5A, Custom House, No.60, Rajaji Salai, Chennai – 600 001....Appellants/ Respondents-vs-M/s.Unistar World Trade,rep.by its Partner Sunil Balaji,8/41, South Patel Nagar,New Delhi-110 008....Respondent/ Petitioner Appeal against the order, dated 19.09.2007, passed inW.P.No.29185 of 2007, on the file of a learned single Judge of thisCourt presented under Article 226 of the Constitution of India toissue a writ of mandamus directing the respondents herein to releasethe good viz. 132 units of old and used photocopiers with acessoriesimported vide bill of Entry No. 518775, dated 31.7.2007 as per thepractice prevailing in the Chennai Custom House and on the valuedeclared by the petitioner at USD 33,015.00 (C & F) totally.For appellants : Mr.C.S.Sundararaj, Senior Panel Counsel for Central Government.For respondent : Mr.A.K.Jayaraj https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TV.DHANAPALAN,J.Respondent imported 132 units of old and used Photocopierswith accessories from Singapore for a total value of USD 33,015. Onarrival of the goods at Chennai Harbour, the respondent filed a Billof Entry No.518775, dated 31.07.2007, and sought for clearance ofthe same. However, the Chartered Engineer of the Departmentinspected the goods and appraised the total value at USD 48,255. Asthe respondent did not produce any licence, the goods wereconfiscated under Section 111 (d) of the Customs Act,1962.2. The Bill of Entry was taken up for adjudication by theappellants. The respondent, in his letter, dated 23.08.2007,requested the appellants to release the goods. Pendingconsideration of such a request by the appellants, the respondentapproached this Court by filing a Writ Petition No.29185 of 2007,praying for a direction to release the goods.3. The learned single Judge, while disposing of the WritPetition, by an order, dated 19.09.2007, directed the appellants torelease the goods to the respondent on payment of duty on theenhanced value and also depositing a sum of 35% on the enhancedvalue towards redemption, fine and penalty. The said order is underchallenge in this Writ Appeal.4. The contention of the learned counsel for theappellants is that when the request of the respondent was underconsideration by the appellants, the respondent approached thisCourt by filing a Writ Petition, whereupon the learned single Judge,by passing the order impugned, curtailed the statutory adjudicationpowers of the Department under the Customs Act and, therefore, thesaid order is liable to be set aside.5. Conversely, learned counsel for the respondent wouldsubmit that once the goods have arrived at the port of destination,the respondent is entitled to have the goods cleared without unduedelay and the authorities were under statutory obligation to performtheir duties, which was not done, and, hence, the order passed bythe learned single Judge does not warrant any interference.6. We have heard the learned counsel for the parties andalso gone through the records, coupled with the order impugned.7. Clause 2.17 of the Exim Policy, as amended byGovernment of India vide Notification No.31 (RE-2005)/2004-2009,dated 19th October,2005, is quite necessary for deciding the issue inquestion. The said clause reads as follows : https://hcservices.ecourts.gov.in/hcservices/ "Import of second hand capital goods,including refurbished/reconditioned spares,shall be allowed freely. However, secondhand personal computers/laptops, photocopiermachines, air conditioners, dieselgenerating sets will only be allowed againsta licence issued in this behalf."8. As per the above provision, the import of second handcapital goods, including refurbished/reconditioned spares, shall beallowed freely. However, second hand photocopier machines, which arethe subject matter in this case, will only be allowed against alicence issued in that behalf.9. It is the admitted case of the respondent that he didnot have a specific licence as per the above amended provision forgetting release of the goods in question and, hence, he requestedthe appellants to release the goods after fixing fine and penalty.That being so, he cannot compel the authorities to order immediaterelease of the goods. When the requisition of the respondent, dated23.08.2007, was under consideration by the appellants, therespondent, without waiting for the outcome thereof, immediatelyrushed to this Court and obtained the order in his favour, therebycurtailing the statutory powers of the authorities, which attitudeof the respondent cannot be appreciated. It was not the case of therespondent that his request was rejected by the authorities. It isalso seen that there was a variation in the value of the goodsdeclared by the respondent and the value appraised by the CharteredEngineer of the Department. When such discrepancies exist, theauthorities can have a breathing time and cannot be hastened to actswiftly on the request made by the respondent. It is also not thecase of the respondent that the goods were of perishable nature.Though the learned counsel for the respondent cited a catena ofunreported decisions of this Court ordering conditional release ofthe goods, we are of the considered opinion, that, in view of non-possession of licence, which is mandatory for release of thespecific goods in question, as per Clause 2.17 of the Exim Policy,the said decisions cannot be applicable to the case on hand. In thegiven situation, the learned single Judge ought not to have orderedthe release of the goods in a hasty manner, though conditionally. 10. Reasons introduce clarity in an order. On a plainestconsideration, the learned single Judge ought to have set forth hisreasons, howsoever brief, in his order, indicative of an applicationof his mind, all the more when his order is amenable to furtheravenue of challenge. The absence of reasons has rendered the orderof the learned single Judge unsustainable. https://hcservices.ecourts.gov.in/hcservices/

11. We find that the writ petition involved disputed issueregarding release of goods. The manner in which the learned singleJudge has disposed of the writ petition shows that the basicrequirement of indicating reasons was not kept in view and is aclassic case of non-application of mind. This Court, in severalcases, has indicated the necessity for recording reasons. Reasonssubstitute subjectivity by objectivity. The emphasis on recordingreasons is that if the decision reveals the "inscrutable face of thesphinx", it can, by its silence, render it virtually impossible forthe Courts to perform their appellate function or exercise the powerof judicial review in adjudicating the validity of the decision.Right to reason is an indispensable part of a sound judicial system.Another rationale is that the affected party can know why thedecision has gone against him. One of the salutary principles ofnatural justice is spelling out reasons for the order made, in otherwords, a speaking-out.12. The ordained principle of passing a speaking order hasbeen ruled by the Supreme Court in a recent decision in Director,Horticulture, Punjab & Others v. Jagjivan Parsad, 2008 AIR SCW 2858,wherein, in para 7, it is held thus :"7. Even in respect of administrativeorders, Lord Denning, M.R. in Breen v.Amalgamated Engg. Union [(1971) 1 All ER1148] observed : (All ER p.1154h) "The givingof reasons is one of the fundamentals of goodadministration." In Alexander Machinery(Dudley) Ltd. v. Crabtree [1974 1 CR 120), itwas observed :"Failure to give reasons amountsto denial of justice. Reasons arelive-links between the mind of thedecision-taker to the controversy inquestion and the decision orconclusion arrived at."The above rationale was also followed by the Apex Court earlier inChairman and Managing Director, United Commercial Bank v.P.C.Kakkar, 2003 (4) SCC 364. 13. "Writ of Mandamus" lies on the principle "request anddenial", which means, there should be a request by an individual andsubsequent denial by the statutory authorities. In the present case,only one element, namely, "request" exists and the other, namely,"denial" absents. To put it differently, a request was made by therespondent and the same was under consideration by the appellants,but, there was no denial or rejection of the said request by theappellants. So, when the said request made by the respondent wasunder consideration by the authorities, it was unfair for therespondent to approach the writ court. At the same time, it was https://hcservices.ecourts.gov.in/hcservices/ also not the case of the respondent that there was an inordinatedelay in considering his request by the appellants. In suchcircumstances, the learned single Judge ought to have primarilylooked into the maintainability of the Writ Petition itself.Instead, he ordered release of the goods, which, in our view, is notjusticiable.14. For all the above reasons, this Writ Appeal isallowed, setting aside the order of the learned single Judge. Nocosts. Consequently, the connected M.P.No.1 of 2008 is closed.However, we direct the appellants to consider the representation ofthe respondent, dated 23.08.2007, and pass appropriate ordersthereon in accordance with law, as expeditiously as possible.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixitTo 1.The Commissioner of Customs (Sea Port Import), Custom House, No.60, Rajaji Salai, Chennai – 600 001.2.The Additional Commissioner of Customs, Group 5A, Custom House, No.60, Rajaji Salai, Chennai – 600 001.2 ccs to Mr.A.K. Jayaraj, Sr. 545 and 13241 cc to Mr.Prof C.S. Sundararaj, SR. 1277 W.A.No.938 OF 2008KSK (CO)kk 23/1