V. Dhanapalan, J.
1. Respondent imported 132 units of old and used Photocopiers with accessories from Singapore for a total value of USD 33,015. On arrival of the goods at Chennai Harbour, the respondent filed a Bill of Entry No. 518775, dated 31.07.2007, and sought for clearance of the same. However, the Chartered Engineer of the Department inspected the goods and appraised the total value at USD 48,255. As the respondent did not produce any licence, the goods were confiscated under Section 111(d) of the Customs Act, 1962.
2. The Bill of Entry was taken up for adjudication by the appellants. The respondent, in his letter, dated 23.08.2007, requested the appellants to release the goods. Pending consideration of such a request by the appellants, the respondent approached 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 Writ Petition, by an order, dated 19.09.2007, directed the appellants to release the goods to the respondent on payment of duty on the enhanced value and also depositing a sum of 35% on the enhanced value towards redemption, fine and penalty. The said order is under challenge in this Writ Appeal.
4. The contention of the learned Counsel for the appellants is that when the request of the respondent was under consideration by the appellants, the respondent approached this Court by filing a Writ Petition, whereupon the learned single Judge, by passing the order impugned, curtailed the statutory adjudication powers of the Department under the Customs Act and, therefore, the said order is liable to be set aside.
5. Conversely, learned Counsel for the respondent would submit that once the goods have arrived at the port of destination, the respondent is entitled to have the goods cleared without undue delay and the authorities were under statutory obligation to perform their duties, which was not done, and, hence, the order passed by the learned single Judge does not warrant any interference.
6. We have heard the learned Counsel for the parties and also gone through the records, coupled with the order impugned.
7. Clause 2.17 of the Exim Policy, as amended by Government of India vide Notification No. 31 (RE-2005)/2004-2009, dated 19th October, 2005, is quite necessary for deciding the issue in question. The said clause reads as follows:
Import of second hand capital goods, including refurbished/reconditioned spares, shall be allowed freely. However, second hand personal computers/laptops, photocopier machines, air conditioners, diesel generating sets will only be allowed against a licence issued in this behalf.
8. As per the above provision, the import of second hand capital goods, including refurbished/reconditioned spares, shall be allowed freely. However, second hand photocopier machines, which are the subject matter in this case, will only be allowed against a licence issued in that behalf.
9. It is the admitted case of the respondent that he did not have a specific licence as per the above amended provision for getting release of the goods in question and, hence, he requested the appellants to release the goods after fixing fine and penalty. That being so, he cannot compel the authorities to order immediate release of the goods. When the requisition of the respondent, dated 23.08.2007, was under consideration by the appellants, the respondent, without waiting for the outcome thereof, immediately rushed to this Court and obtained the order in his favour, thereby curtailing the statutory powers of the authorities, which attitude of the respondent cannot be appreciated. It was not the case of the respondent that his request was rejected by the authorities. It is also seen that there was a variation in the value of the goods declared by the respondent and the value appraised by the Chartered Engineer of the Department. When such discrepancies exist, the authorities can have a breathing time and cannot be hastened to act swiftly on the request made by the respondent. It is also not the case of the respondent that the goods were of perishable nature. Though the learned Counsel for the respondent cited a catena of unreported decisions of this Court ordering conditional release of the goods, we are of the considered opinion, that, in view of non-possession of licence, which is mandatory for release of the specific goods in question, as per Clause 2.17 of the Exim Policy, the said decisions cannot be applicable to the case on hand. In the given situation, the learned single Judge ought not to have ordered the release of the goods in a hasty manner, though conditionally.
10. Reasons introduce clarity in an order. On a plainest consideration, the learned single Judge ought to have set forth his reasons, howsoever brief, in his order, indicative of an application of his mind, all the more when his order is amenable to further avenue of challenge. The absence of reasons has rendered the order of the learned single Judge unsustainable.
11. We find that the writ petition involved disputed issue regarding release of goods. The manner in which the learned single Judge has disposed of the writ petition shows that the basic requirement of indicating reasons was not kept in view and is a classic case of non-application of mind. This Court, in several cases, has indicated the necessity for recording reasons. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of 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 the decision has gone against him. One of the salutary principles of natural justice is spelling out reasons for the order made, in other words, a speaking-out.
12. The ordained principle of passing a speaking order has been ruled by the Supreme Court in a recent decision in Director, Horticulture, Punjab and Ors. v. Jagjivan Parsad 2008 AIR SCW 2858, wherein, in para 7, it is held thus:
7. Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971) 1 All ER 1148 observed : (All ER p.1154h) 'The giving of reasons is one of the fundamentals of good administration.' In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 (1) CR 120, it was observed:
Failure to give reasons amounts to denial of justice. Reasons are live-links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.The above rationale was also followed by the Apex Court earlier in Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar : (2003)IILLJ181SC .
13. 'Writ of Mandamus' lies on the principle 'request and denial', which means, there should be a request by an individual and subsequent 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 the respondent and the same was under consideration by the appellants, but, there was no denial or rejection of the said request by the appellants. So, when the said request made by the respondent was under consideration by the authorities, it was unfair for the respondent to approach the writ court. At the same time, it was also not the case of the respondent that there was an inordinate delay in considering his request by the appellants. In such circumstances, the learned single Judge ought to have primarily looked into the maintainability of the Writ Petition itself. Instead, he ordered release of the goods, which, in our view, is not justiciable.
14. For all the above reasons, this Writ Appeal is allowed, setting aside the order of the learned single Judge. No costs. Consequently, the connected M.P. No. 1 of 2008 is closed. However, we direct the appellants to consider the representation of the respondent, dated 23.08.2007, and pass appropriate orders thereon in accordance with law, as expeditiously as possible.