Judgment:
1. Being dissatisfied with the confiscation of the imported subject goods with an option to redeem the same on payment of redemption fine of Rs. 15,000/- the appellant has filed the present appeal.
2. Factual backdrop: The appellant imported 1152 Kgs nett of Glass Beeds contained in 24 cases sent from Czechoslovakia on 28.4.1985 as per supplier's Cross Border Certificate No. 680-52765 dated 28.4.1985, shipped from Hamburg, West Germany on 9.5.1985 as per Bill of Lading No. 1 dated 9.5.1985 and arrived at Calcutta per N.V. Calabar, Rot No.321/85 dated 21.6.1985 under Line No. 12. On arrival the appellants sought the clearance of the imported goods under ITC Licence No.PK/L/M/3019946 dated 31.3.1984 which had already expired on 31.3.1985. On examination of the documents by the authorities concerned it was found that the subject goods were supplied in terms of irrevocable Letter of Credit dated 27.9.1984 on account of New Bank of India Limited against another Import Licences Nos.P/L/302614/C/XX/91 dated 19.5.1984 and P/L/3020612/C/XX/91 dated 19.5.1984 as indicated in the Letter of Credit and also in the covering Invoice No. 615-167-Oil dated 25.4.1985. On being pointed out as to how appellants are claiming clearance of the imported goods under different Licence No.PK/L/M/3019946 dated 31.3.1984 which had already expired on 31.3.1985 the appellants pleaded that the time of opening of Letter of Credit Licence No. 3019946 dated 31.3.1984 was not readily available.
The appellants further pleaded that the instant shipment tantamounts to have taken place on 28.4.1985 which is within the grace period of 28 days from the date of expiry of the said licence. On this plea the appellants requested the adjudicating officers to condone the delay of 28 days in terms of Paragraph AM 209(1) of the Hand book of Import-Export procedures, 1983-1984. However, the Deputy Collector of Customs who adjudcated the case did not agree with the said plea advanced by the appellants and ordered for the confiscation of the imported goods but gave an option to the appellants to redeem the subject goods on payment of redemption fine of Rs. 15,000/-in lieu of confiscation vide his adjudication Order dated 29.1.1986. Against this order of adjudication the appellants went in appeal before the Collector of Customs (Appeals), Calcutta. In the appeal before the lower appellate authority the main thrust of the argument of the appellant was that the adjudicating officers' refusal to condone the delay in shipment for only 28 days tantamounts to discrimination against the appellants since condonation for delay in shipment is normally allowed by Customs Authorities. However, in the facts and circumstances of the case the lower appellate authority did not agree with the said contention of the appellants and ultimately upheld the adjudication order and rejected the appeal. Hence the instant appeal.
3. Shri S.V. Thawrani, learned Counsel appearing for the appellants submitted that in the instant case clearance of the imported goods was sought under ITC Licence No.PK/L/M/3019946 dated 31.3.1984 which was valid upto 31.3.1985 and confirmed irrevocable Letter of Credit was opened on 27.9.1984 and the goods were shipped on 28.4.1985, i.e. to say within the grace period of 60 days allowed under para AM 209(1) of the Hand Book of Import-Export Procedures, 1983-1984. He further submitted that when the import of the subject goods was valid under para 323 read with para 325, ibid the authorities below should have condoned the delay of 28 days under their discretionary powers which they failed to do so. This act of refusal to condone the delay, according to the learned Counsel amounts to misuse of discretion given to the authorities under para 209(1), ibid. He also submitted that the said Licence No.PK/L/M/3019946 dated 31.3.1984 under which the appellants claimed the clearance was a REP Licence and it was also trans-ferred to another Firm namely M/s Jain Beads Centre, Calcutta. On transfer the said Im-porter namely M/s Jain Beads Centre, Calcutta imported the identical goods under cover of the Bill of Entry No. W. R.3554 of 6.9.1985. In that case submitted the Counsel, there was a delay of 30 days in shipment which was condoned. He also cited few other examples where the goods were shipped during the grace period and the delay was condoned. On this premises he submitted that the refusal to condone the delay in the instant case in terms of para 209(1), ibid amounts to discrimination within Article 14 of the Constitution of India which is not permissible in view of the following case -Purshottam Lal v. Union of India, AIR 4. In reply Shri M.C. Thakur, learned SDR submitted that in order to facilitate shipment/despatch of goods against licence, a grace period not exceeding 60 days is allowed after the date on which the licence expires under sub-para (1) of para 209 of the Hand Book of Import-Export procedures, 1983-1984 and this grace period cannot be claimed as a matter of right as provided in sub-para (4) of para 209 itself. In the process, he submitted that the exercise of the discretion vested in the customs authorities to condone the delay occurred during the grace period 'depends upon the facts and circumstances of each and every case and no parallel can be drawn from the other case/or cases and therefore, no question of any discrimination arises so as to attract Article 14 of the Constitution of India, in the instant case submitted the learned SDR no circumstance or circumstances much less unavoidable was pointed out by the appellants to convince the authorities below why the subject goods could not be shipped during the currency of the licence. On the other hand, the appellants deliberately submitted the said licence for clearance of the impored goods on the assumption that it is the right of the importer to get the clearance of the goods if the goods are shipped after the expiry of the licence but within the grace period of 60 days as allowed under para 209(1), ibid. He further submitted that in the instant case Letter of Credit under which the subject goods were supplied and imported was opened against another import licences and not under the import licence on the strength of which the clearance of the subject goods was sought by the appellants.
5. I have considered the arguments so advanced by the parties. Para 207 of the Handbook of Import-Export Procedures, 1983-1984 speaks of "Validity of Import Licences to cover imports" and provides that the validity of an import licence is decided with reference to the date of actual shipment/despatch of the goods from the supplying country and not the date of arrival of the goods at an Indian Port. Sub-para (1) of para 209 provides that in order to facilitate shipment/despatch of goods against licences a grace period not exceeding 60 days is allowed after the date on which the licence expires and sub-para (4) of the same para expressly lays down that "the grace period cannot be claimed as a matter of right". Sub-para (6) of the same para further provides that on certain occasions such as dockyard strike in the country of shipment when the importers face genuine difficulties and the goods cannot be shipped in time, the licensing authority may, by a general authorisation extend the period of validity of any licence on an ad hoc basis for a specified period and such extension, where granted will be in the nature of enhanced grace period. In the instant case it is admitted to the appellants that the Licence No. PK/L/M/3019946 dated 31.3.1984 under which the clearance of the subject goods was sought expired on 31.3.1985, i.e. to say much before the date of shipment of imported goods on 20.4.1985. It also cannot be disputed that in view of the expressed provisions of sub-para (4) of para 209, the grace period cannot be claimed as a matter of right. Thus the only question which survives for my consideration is as to whether the authorities below acted arbitrarily in refusing to condone the delay as contended by the learned counsel for the appellants or acted judiciously as replied by the learned SDR. On a perusal of the impugned order I find that the goods were supplied by the supplier to the appellants in terms of irrevocable letter of credit against Import Licences Nos.P/L/302614/C/XX/91 dated 19.5.1984 and P/L/3020612/C/XX/91 dated 19.5.1984 and not under the Import Licence No. PK/L/M/3019946 dated 31.3.1984 under which the appellants claimed the clearance of the imported goods on arrival. It further appears that immediately after the arrival of the subject goods the appellants straight away produced the said Licence No.PK/L/M/3019946 dated 31.3.1984 which had already expired on 313.1985 and never asked for condoning the delay in terms of para 209(1) and it is only when on examination of the documents the customs authorities asked the appellants to explain as to how he is claiming the clearance of the subject goods on the strength of the said licence dated 31.3.1984 when it has already expired on 31.3.1985, ,the appellants came out with a plea that at the time of opening of letter of credit the said licence dated 31.3.1984 was not readily available and since the shipment was within the grace period of 60 days from the date of expiry of the licence the importation is valid. On these facts the adjudicating authority in its discretion did not condone the delay.
It is significant to note that the appellants never produced the said 2 licences again which the said letter of credit was opened. On appeal a similar plea was advanced before the Collector of Customs (Appeals) which was disposed of in these terms - " ... In the instant case the delay in the shipment has not been accounted for so as to justify the appellant's prayer before the original side for allowing the shipment within the grace period. As a matter of fact, there was actually no delay in the shipment since the last date of shipment viz. 31.12.1984 as per L/C was ex tended upto 30.4.1985 as per amendment of the L/C on 1.2.1985. In the cir cumstances, it was the responsibility of the appellant to ask for re-validation of the impugned licence from the licencing authorities so as to cover the shipment upto 30.4.1985. However, it is seen that it is a REP licence originally issued in the name of Everest Forging & Allied Industries, Shillong, Meghalaya and has been transferred in the name of variousfrnporters from time to time in accordance with the provisions under paras 140 and 141 of the AM 84 Policy. As per documents submitted by the appellant the licence was first transferred in the name of Sunshine International of 31A Mullick Street, Calcutta-7, next in the name of Jain Beads Centre of 17, Pagyapatty Street, Calcutta-7 and finally in the name of the appellant M/s Nagpur Woollen Mills Ltd., 141, B.K. Paul Avenue, Calcutta-5. It is interesting to note that as per documents all these transfers were effected on the same day namely 19.4.1984. But the debits in the Licence show a different picture first debit in the licence was made on 27.12.1984 for Rs. 3,47,498 for PVC Leather Cloth landed ex. M.V.Cherry Lanka Rot No. 589/84, Line No. 7. The second debit was made in the licence on 30.8.1985 for flass beads of value Rs. 52736/- landed ex August Ceasarce Rot No. 299/85 Line No. 14. The third debit in the licence is made in respect of the impugned goods. In the circumstances, it is difficult to understand as to how the impugned licence was transferred in the name of the appellant as early as 19.4.1984. The two Licences No.P/L/302614 dated 19.5.1984 and P/L/3020612 dated 19.5.1984 against which the L/C was opened have not been submitted for scrutiny. The L/C was revalidated upto 30.4.1984 and it seems that the impugned goods would have been covered by the said two licences provided they covered the description and value of the goods. The appellant has not assigned any reasons for non-submission of the said two licences for the clearance. From the facts and circumstances of the case it appears that the appellant deliberately submitted the impugned licence on the assumption that the original side could be convinced to accept the invalid licence by condoning the delay in the shipment as within its grace period. The original side acted judiciously by not accepting the licence for clearance of the impugned goods." 6. I have myself considered the arguments advanced by the appellants for condoning the delay in terms of para 209, ibid. It is true that there is no bar under the Import Policy to utilise a different licence for clearance of the subject goods than what is referred to in the letter of credit but the fact remains that the licence under which the clearance of the goods imported is plaimed must be valid in every respect to coyer the importation. In the instant case admittedly the said two licences against which the letter of credit was opened were never produced and the clearance of the subject goods was sought against the dead(expired) licence. In the instant case admittedly the subject goods were shipped after the explry of the Licence No.PK/L/M/3019946 dated 31.3.1984 oh 31.3.1985 and no evidence was produced by the appellants to show that the delay in shipment was due to any cause, much less a reasonable cause, except that an importer has right to import the goods within the grace period as provided in Para 209(1), ibjd after the expiry of the licence. In the circumstances, if the authorities below in their discretion did not think it proper to condone the delay of 28 days in shipment of the imported goods in terms of sub-para (1) read with sub-para (4) of para 209 of the Handbook of Import-Export Procedures, 1983-84 no fault can be found and no question of any discrimination arises. (I, also) under these circumstances (do not think) it proper to interfere with the discretion exercised by the authorities below.