Full Judgment
Sawant, J.
1. This appeal seeks to challenge the interim order passed by the learned Single Judge on June 17, 1988 in Writ Petition No. 1735 of 1988. The learned Judge has allowed the petitioners to clear the goods by giving Bank Guarantee in favour of the Collector of Customs, for the differential amount of the additional duty.
2. Mr. Dalai appearing for the appellant-Union of India-contends that the challenge to Section 3(2) of the Customs Act on grounds other than the legislative competence has already been repelled by this Court and hence the present challenge based on legislative competence of the Parliament does not merit the impugned interim order in favour of the petitioners.
3. Mr. Bulchandani appearing for the respondents-petitioners points out that the constitutional validity of Section 3(2) of the Customs Act, including the legislative competence of the Parliament to enact the said provision is directly under challenge in the Supreme Court right from the year 1983. In all matters which have been admitted by the Supreme Court on the same ground, an interim relief has been invariably granted to the petitioners allowing them to clear the goods by giving only a Bank Guarantee of the amount in dispute. The latest order that he has produced in that behalf is annexed to the affidavit in reply. It is an order dated July 4, 1988 passed in Writ Petition No. 647 of 1988,
4. As against this, Mr Dalal relied upon an order passed by the Supreme Court in a similar matter on April 4,1988, where the interim stay was refused but only a direction was given that in case the petitioners succeed, they will be entitled to the refund of the duty with interest at 18% per annum.
5. Mr. Bulchandani points out that this is an exceptional case. In all other matters, including the latest matter, as pointed out above, the Supreme Court has granted interim relief of clearance of goods only on the furnishing of a Bank Guarantee. We have gone through the several orders which are produced before us and we find that there is much substance in the contention advanced by Mr. Bulchandani. It has also to be noted that whereas in the order passed on April 4, 1988 the Government was represented by an Advocate, in other cases it docs not appear from the copies of the orders produced before us that there was any appearance on behalf of the Government. We will, therefore, proceed on the assumption that all other orders were ex-parte. Even so, the ex-parte orders are being passed ever since 1983 and the Union Government has not taken any steps to get the said orders either vacated or modified. In the circumstances, if the learned Single Judge has passed a similar order, we see no reason to interfere with it.
6. Liberty, however, is given to the respondents to move the learned Single Judge, if the Supreme Court either vacates or modifies its orders whereby they have permitted clearance of goods by furnishing only a Bank Guarantee.
7. The appeal is, therefore, dismissed with no order as to costs.
8. In the circumstances, no order on the Motion.
9. On the Bank Guarantee being furnished the Customs will clear the goods forthwith.