1. All the petitioners have imported fresh garlic which is a restricted category. The import has been made without obtaining due licence and therefore, they knew that the goods were liable to be confiscated. Yet they imported the goods without obtaining licence expecting to be given the option to pay fine in lieu of confiscation under Section 125 of the Customs Act, 1962. A Public Notice No. 222/02, dated 20-6-2002 was issued by the Commissioner of Customs to the effect that import of fresh garlic will not be allowed henceforth and if any fresh garlic is imported without a licence the same will have to be re-exported. From the covering letter, dated Nil, issued by the Joint Commissioner of Customs it is seen that the Ministry of Agriculture had conveyed its opinion that fresh garlic should not be imported without licence and therefore, the instructions have been issued which is required to be observed scrupulously. On 25-6-2002, letter No. 446/9/2002 was issued by the Central Board of Indirect Taxes to the Customs Authorities informing them that the Director General of Foreign Trade had after reviewing the matter in consultation with the Ministry of Agriculture decided not to allow clearance of fresh garlic imported without a license for home consumption after imposition of fine or penalty and that such imported garlic should be re-exported forthwith. The petitioners imported garlic despite the public notice.
2. The Commissioner of Customs directed re-export of the cargo after imposing a penalty under Section 112(a) of customs Act. The order reads thus:
“I find no option but only to allow the importers to re-export the goods in terms of a public notice dated …”
3. Section 125 of the Customs Act reads as follows:
Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit:
Provided that, without prejudice to the provisions of the proviso to subsection (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon.
(2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods.
4. The construction of this section is quite crucial. When the petitions for stay came up, by consent the main writ petitions were taken up. The learned Senior Counsel for the petitioners in W.P No. 34064 and 34065 of 2002 made her submissions both orally and also submitted written arguments. This was adopted and supplemented by all the learned counsel appearing for the petitioners in the other writ petitions. Their submissions were as follows:
(a) The Exim policy determines whether goods are free or prohibited absolutely or restricted. Fresh garlic falls under the category of ‘restricted’ as against ‘free’ or ‘prohibited’. When goods are imported contrary to any prohibition imposed by law they are liable to be confiscated under Section 111(d) of the Customs Act, however, the Customs Officer who is the Adjudicating Officer under Section 125 of the Customs Act must give the option to pay fine in lieu of confiscation and that where the goods that are imported are restricted items then granting option of payment of fine in lieu of confiscation is mandatory on the part of the officer. This right to exercise option cannot be restricted by executive orders and the right of the importers to pay the fine and redeem the goods cannot also be taken away. There is nothing in the Customs Act which provides for re-export of goods and policy decisions relating to export and import must be taken by the Ministry of Commerce and not at the instance of Ministry of Agriculture. Therefore, the orders passed for re-export are ultra vires the Customs Act.
(b) Further, India is a member of the GATT regime which requires a nation not to adopt discriminatory measures with respect to the fellow members' goods and therefore, the garlic imported from China cannot be re-exported since it would amount to discrimination. It was also submitted that all actions of the Government must be tested against the principle of reasonableness. When viewed in this light there is no justification, for the Agriculture Ministry to have given such an advise and in fact there is nothing to indicate why the public notice has been issued, or what public interest has been affected. If the import amounts to antidumping then resort can be had to the relevant Rules which provide for imposition of duty if injury to local industry is established.
(c) The impugned circulars and public notices are ultra vires Section 125 of the Customs Act. The circular dated 25-06-2002 and the public notice dated 20-06-2002 are without sanction of law. The Central Government and Ministry of Commerce issue licenses to State Owned Federations to import garlic but not to private individuals, and it amounts to infringement of the right of equality enshrined in Article 14 of the Constitution of India. The impugned circular is arbitrary and discriminatory. Section 151(a) of the Customs Act empowers the Central Board of Indirect Taxes to give directions with regard to classification of goods and levy of duty and this circular relates to neither. The respondents cannot take shelter by saying that policy can be amended at any time depending upon the current need since the authorities are bound to exercise their power only within the frame-work of the Act and not otherwise, while the Foreign Trade (Development and Regulation) Act, 1992 provides for regulating the policy this public notice not being a notification under the said Act is null and void.
(d) Finally, the appellate remedy will be of no avail since the appellate authority being subordinate to the Board will be bound by the impugned circulars and notices. So their validity can only be tested under Article 226 of the Constitution of India. It was also submitted that a executive fiat cannot take away the right given. There is actually no change in policy regarding import of garlic and therefore, there is no justification for the issuance of public notice and that it is not for the Board to say the goods must be re-exported. The appellate remedy is really illusory.
5. The learned Additional Solicitor General in reply to the above made the following submissions:
(a) When there is an appellate remedy that should be resorted to. It was also submitted that the International Conventions will have a play only if there is no inconsistency with the domestic law. When there is a specific bar of import of garlic and the consequences of such import had been laid down in the domestic law, there was no warrant to refer to WTO or any other international agreement. It was also submitted that no one has the fundamental right to import. The said right traces its source to the Export and Import Policy and therefore, the right can be modified or regulated by the State. The petitioners are not innocent persons who have been taken aback by a change in the policy. They had imported garlic deliberately without licence flouting the law and, in full knowledge of the Public Notice. Therefore, they will have to suffer the consequences. The Government has the power to issue public notices intimating any change in the policy tailored to the needs of the times. The fact that the goods are admittedly restricted goods would mean that they are prohibited goods and therefore, the petitioners are not entitled to the option.
(b) The provisions in Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 show that the Government has the power to prohibit, restrict or otherwise regulate the import or export of goods.
6. Several decisions were relied on by both sides.
(i) (1) Commissioner of Customs (Preventive) v. Uma Shankar Verma [2000 (120) E.L.T 322 (Cal.)] and Shaik Jamal Basha v. Government of India [1997 (91) E.L.T 277 (A.P)] are both judgments of the Division Bench of the respective High Courts dealing with the power of adjudicating officer under Section 25.
“If the goods are prohibited the option to confiscate them without giving any option to pay fine in lieu thereof is with the Customs authorities but when the goods are not prohibited, the Customs authorities have no other option but to allow grant of an option to the assessee to pay a fine in lieu of confiscation - Section 125 of Customs Act, 1962.” (Calcutta High Court)
“Section 125 leaves option to the officer to grant the benefit or not so far as goods whose import is prohibited but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation.”(A.P High Court)
(2) State of Madhya Pradesh v. G.S Dall and Flour Mills (Vol. 187 ITR 478), in which the Supreme Court held that,
“Interpretation of Statutes - Executive instructions can ony supplement statute - Cannot curtail the statute or whittle down its effect-Notification prescribing qualifications for exemption-Instructions cannot cut down scope of notification.”
(3) In N. Jayathilakan v. Additional Secretary [1987 (31) E.L.T 47 (Mad.)], the Madras High Court has held that,
“Therefore, the authority ought to have given the option to the petitioner before ordering confiscation of the goods.”
(4) Shri Rama Sugar Industries Limited v. State of Andhra Pradesh[(1974) 1 SCC 534], wherein the Supreme Court held that,
“Generally speaking an authority invested with a discretion, must not, by adopting a rule or policy, disable itself from exercising its discretion in individual cases.”
(5) Tata Cellular v. Union Of India.[(1994) 6 SCC 651] where the Supreme Court laid down the broad grounds against which the option can be tested namely illegality, irrationality, procedural impropriety.
(6) Hargovind Das K. Joshi v. Collector of Customs [1992 (61) E.L.T 172 (S.C)] was relied wherein the Supreme Court has held as follows:
“Redemption Fine-Customs-Absolute confiscation of goods by Collector without considering question of redemption on payment of fine although having discretion to do so-Matter remanded to Collector for consideration of exercise of discretion for imposition of redemption fine — Section 125 of Customs Act, 1962.”
(7) Mohan Meakin Limited v. Commissioner of Central Excise, Kochi [2000 (115) E.L.T 3 (S.C)] was relied on and it is extracted as follows:
“The proviso to Section 125(1) makes it obligatory on the adjudging authority to evaluate the fine which should not exceed the market price of the goods confiscated (emphasis supplied). Therefore, there is a mandatory requirement on the adjudicating Officer permitting the redemption of goods, firstly, to assess the market value of the goods and then to levy any duty or charge payable on such goods apart from the redemption fine that he intends to levy on sub-clause (1) of that Section.”
(8) Commr. of Cus. (Import), Mumbai v. Jagdish Cancer & Research Centre [2001 (132) E.L.T 257 (S.C)]
“The order of payment of duty under Section 125(2) would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of goods was granted, without attracting the provisions of Section 28(1) of the Customs Act. A reference may beneficially be made to a decision of this Court reported in Mohan Meakins Ltd. v. Commissioner Of Central Excise, Kochi, Kochi2000 (115) E.L.T 3 (S.C) : (2000) 1 SCC 462 wherein it has been observed in Para 6”…. Therefore, there is a mandatory requirement on the adjudicating officer before permitting the redemption of goods, firstly, to assess the market value of the goods and then to levy any duty or charge payable on such goods apart from the redemption fine that he intends to levy under sub-section (1) of that section.”
(9) In Suresh Kumar Agarwal v. Collector of Customs, Madras [1998 (103) E.L.T 18 (A.P)] it is held as follows:
“Adjudication (Customs) - Redemption fine - Authority has a discretion to order release of prohibited goods on payment of fine in lieu of confiscation - Discretion given by the statute is for the purpose of exercising it unless there are good grounds for not exercising it - In that case, the authority ought to state the said reason(s) very briefly in his order - Sections 122 and 125 of Customs Act, 1962.”
(ii) On the side of the respondents the following decision was cited on the question of by-passing the remedy of statutory appeal.
(1) The Division Bench of this Court had held in The Collector of Customs v. Madras Electric Castings P. Ltd., Madras [1994 (71) E.L.T 646 (Mad.) : 1994 MLJ 664] as follows:
“Therefore, it is clear that jurisdiction under Art. 226 of the Constitution cannot be exercised only for the purpose of granting the relief of interim nature, when the main matter is to be decided by another authority and further consequence of granting such interim relief is to infructuate the very order of confiscation as pointed out above.”
As regards the other issues, the following cases were cited:
(2) In P.T.R Exports (Madras) Pvt. Ltd. v. Union of India [1996 (88) E.L.T 3 (S.C) : (1996) 5 SCC 268], it was held as follows:
“The Court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy…”
The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved.
(3) In S.B International Ltd. v. Asst. Director General of Foreign Trade [1996 (82) E.L.T 164 (S.C) : (1996) 2 SCC 439] it was held that,
“The said provisions make it clear that the object behind the Scheme is to enable the exporter to import raw materials, components etc. required for the purpose of producing goods for export. It is a facility provided by the Government — an incentive. There is no right to advance licence apart from the policy. No citizen has a fundamental right to import, much less import free of duty.”
(4) In the above case reference was made to the following observations in Andhra Industrial Works v. Chief Controller of Imports [(1974) 2 SCC 348].
“No person can merely on the basis of such a Statement claim a right to the grant of an import licence, enforceable at law. Moreover, such a policy can be changed, rescinded or altered by mere administrative orders or executive instructions issued at any time.”
(5) Kasinka Trading v. Union of India [1994 (74) E.L.T 782 (S.C) : (1995) 1 SCC 274] was relied on where the Supreme Court upheld the power of the Government to withdraw the notification and it was held that what was issued in public interest and may be withdrawn in public interest. Reference was made therein to Subhash Photographics v. Union of India [1993 (66) E.L.T 3 (S.C) : 1993 Supp (3) SCC 323] which dealt with flexibility in law-making.
“In statutes like Customs Act and Customs Tariff Act one has also to keep in mind that such legislation can be properly administered only by constantly adjusting it to the needs of the situation. This calls for a good amount, of discretion to be allowed to the delegate. As is often pointed out ‘flexibility is essential (in law-making) and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can Acts of Parliament’. We have pointed out hereinbefore the necessity of constant and continuous monitoring of the nation's economy by the Government (and its various institutions) and the relevance of these enactments as a means of ensuring a proper and healthy growth.”
(6) In D. Navinchandra & Co., Bombay etc. v. Union of India [1987 (29) E.L.T 492 (S.C) : (1987) 3 SCC 66 : AIR 1987 S.C 1794] the Supreme Court has held:
“If the Government decided an economic policy that import or export should be by a selected channel or through selected agencies the Court would proceed on the assumption that the decision was in the interest of the general public unless the contrary was shown.”
(7) In addition, Vishaka v. State of Rajasthan [(1997) 6 SCC 241] and Apparel Export Promotion Council v. A.K Chopra ((1997) 1 SCC 759) were referred to for the purpose of showing to what extent the Supreme Court had declared the binding nature of international instruments upon domestic law and to what extent these conventions can be read into fundamental rights in the absence of domestic law in the particular aspect.
(8) In Narendra Kumar v. The Union of India [AIR 1960 S.C 430] a Five Judge Bench construed the word ‘restriction’ in Article 19(1).
“It is reasonable to think that the makers of the Constitution considered the word ‘restriction’ to be sufficiently wide to save laws inconsistent with Art. 19(1), or taking away the rights conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt, therefore, that they intended the word ‘restriction’ to include cases of prohibition also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved cannot, therefore, be accepted.
It is undoubtedly correct, however, that when the restriction reaches the stage of prohibition, special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court.
… Prohibition was in all these cases treated as only a kind of ‘restriction’. Any other view would, in our opinion, defeat the intention of the Constitution.”
7. The following facts can be taken for granted since they are admitted by the petitioners.
(a) Garlic must be imported only after obtaining license. Its import is restricted.
(b) The petitioners knew that garlic was a restricted item and yet they imported it without obtaining licence.
(c) The petitioners were aware of the public notice and yet they imported fresh garlic.
8. The petitioners' case is that garlic is a restricted item as against free and prohibited items. The Customs Act defines “prohibited goods” under Section 2(33) and it reads as follows:
“prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with.”
There is no definition of “restricted goods”.
9. Section 111 categorizes goods which are liable to confiscation. Section 111(d) reads as follows:
“any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force.”
10. Section 11 gives the Central Government the power to prohibit importation or exportation of goods either absolutely or subject to special conditions to be fulfilled before or after clearance. Fresh garlic is classifiable under CTH 0703.20 and its import is restricted except against a specific licence.
11. In Sheikh Mohd. Omer v. Collector of Customs, Calcutta [1983 (13) E.L.T 1439 (S.C) : (1970) 2 SCC 728] the appellant before the Supreme Court had imported a mare, in contravention to the provisions of the Imports and Exports (Control) Act, 1947. It was held that any restriction on import and export is to an extent a prohibition. The import of living animals was prohibited unless the specific licence was granted as per law. The Supreme Court held that “restriction” is one type of prohibition and that import of living animals of all sorts is therefore, prohibited.
12. In this case, the petitioners themselves by referring to Section 111(d) have tacitly admitted that garlic is goods to which prohibition has been imposed by or under the Customs Act or any other law for the time being in force. Therefore, whether the petitioners call it ‘restricted’ or ‘prohibited’ there cannot be any controversy regarding the fact that there is prohibition on the import of fresh garlic.
13. Section 125(1) of the Customs Act has two limbs. No doubt under this section a right is given to the person from whom goods have been confiscated, importer or exporter as the case to pay fine in lieu of confiscation. But it is not correct to state that this light is an unqualified or absolute right available in all cases of confiscation. The power exercised by the officer under Section 125 of the Customs Act is a quasi judicial power. With regard to goods the importation or exportation of which is prohibited under this Act or under any other law for the time being in force the authority has the discretion to give to the owner of the goods or if he is not known the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the Officer thinks fit and as regards other goods i.e, goods not being prohibited, he is bound to give the aforesaid option. The proviso to this Section deals with the upper limit of the fine imposed under this Section and sub-section (2) deals with the additional liability to pay duty and charges. As per Section 126, the property which is confiscated vests in the Central Government upon such confiscation.
14. In fact, the extracts from judgments of the Calcutta and Andhra Pradesh High Court relied on by the petitioners also clearly say that there is a discretion with the adjudicating authority to decide whether to give the person, who has imported or exported goods which are prohibited by law, the option to pay fine. Hence it cannot be contended that the authority has an obligation to give the petitioner the option to pay fine and a writ of mandamus must be issued.
15. In Garg Woollen Mills (P) Ltd. v. Addl. Collector of Customs, New Delhi [1998 (104) E.L.T 306 (S.C) : (1999) 9 SCC 175] the importer imported serviceable garments which had been concealed in woollen rags. Hence the whole consignment was confiscated. The consignment was absolutely confiscated and the authority under Section 125 of the Customs Act exercised his discretion not to give the option. The Supreme Court held as follows:
“Under Section 125 a discretion has been conferred on the officer to give the option to pay fine in lieu of confiscation in cases of goods, the importation or exportation whereof is prohibited under the Act or under any other law for the time being in force but in respect of other goods the officer is obliged to give such an option. In the present case, having regard to the facts and circumstances in which the goods were said to be imported and the patent fraud committed in importing the goods, the Additional Collector has found that the goods had been imported in violation of the provisions of the Import (Control) Act, 1947. In the circumstances he considered it appropriate to direct absolute confiscation of the goods which indicates that he did not consider it a fit case for exercise of his discretion to give an option to pay the redemption fine under Section 125 of the Act.”
16. In Hargovind Das K. Joshi v. Collector of Customs [1992 (61) E.L.T 172 (S.C) : (1987) 2 SCC 230] three questions were raised by the appellants. One, relating to the validity of the order confiscating the goods, two, relating to the order imposing penalty and three, relating to the failure to give option for the appellants for redeeming the goods.
17. In that case, the Additional Collector of Customs confiscated the goods without exercising the discretion to give the option under Section 125 of the Customs Act and therefore, the Supreme Court held thus:
“He had undoubtedly the authority under law to give an option to the importers to pay such fine as was considered appropriate by him (not exceeding the full market value of the goods in question) in lieu of confiscation of the goods. We are of the opinion that since the Additional Collector of Customs who passed the order for absolute confiscation had the discretion to give the option for redemption, it was but just, fair and proper that he addressed himself to this question.”
18. Therefore, it is clear that the authority has a discretion and must exercise it, and that he is not bound to give the petitioners the option to pay in lieu of confiscation, in the case of goods which are prohibited. Under Section 125 of the Customs Act, in relation to goods that are not prohibited he is bound to give the option.
19. Two submissions were put-forth on behalf of the petitioner. One relating to the huge loss that the petitioner will suffer if the goods are confiscated and two, relating to the Government giving the licences only to State Trading Corporation and thereby depriving the petitioners from obtaining licence. These considerations deserve to be rejected even at the threshold. It is well-settled that equity does not play a part in these matters. It is not their case that they bona fide believed that they could import garlic freely.
20. In fact, this question of bona fide belief that the goods were importable weighed in the minds of the learned Judges in Akbar Badrudin Giwani v. Collector Of Customs, Bombay , Bombay [1990 (47) E.L.T 161 (S.C)= (1990) 2 SCC 203]. But that does not apply to this case. The other issue relating to discrimination between the petitioners and State Trading Corporation was not seriously urged. Further as held by the Supreme Court there is no fundamental right to import. The petitioners definitely have no right to import without licence. Their right is derived from the relevant legislation and is subject to them.
21. Next we come to the validity of the public notice. Section 3(2) of the Foreign Trade (Development and Regulation) Act gives the Central Government the power to prohibit, restrict or otherwise regulate the import or export of goods by Order published in official gazette. In the first place, the public notice is not an Order published in the official gazette. No reference was made to any such publication in the gazette either in the oral submission or in the counter. Section 3(2) will not apply. In any event this is not a case where the import of garlic is prohibited, restricted or otherwise regulated. The import of garlic was and is prohibited or restricted and continues to be so. There is no change in the policy regarding the restriction on the import of garlic or partial prohibition if you may so term it. What the public notice intends to do is to alter the consequence of an illegal import. In the decisions cited above there have been references to public notices which have the effect of granting exemptions or withdrawing exemptions or concessions etc.
22. In Union of India v. Shree Ganesh Steel Rolling Mills Ltd., [1996 (84) E.L.T 3 (S.C) : (1996) 8 SCC 347], the Supreme Court reading Para 16 of the Export and Import Policy,
“The Chief Controller of Imports & Exports, may, in a case or class of cases, specify the procedure to be followed by an exporter or importer or by any licensing, competent or either authority for the purpose of implementing the provisions of the Act, the rules and orders made thereunder and this policy. Such procedures shall be included in the Handbook of Procedures and published by means of a public notice”,
23. held that the procedure to be followed could be specified by a public notice.
But what is the effect of the public notice that has been challenged in these writ petitions. This public notice does not specify the procedure to be followed by the importer. It may be said that it specifies the procedure to be followed by the authority, since it requires the authority under Section 125 of the Customs Act to re-export fresh garlic after confiscation. The words used by the Commissioner of Customs, the first respondent herein in the impugned order are very eloquent and they read thus:
“I find no option but only to allow the importers to re-export…”
24. In the Hargovind Das K. Joshi case, the Supreme Court has directed the concerned Customs Officer to hear the parties and see if the benefit of Section 125(1) of the Customs Act can be given.
25. In Cawasji Behramji & Co. v. H.N Saifi [1990 (49) E.L.T 161] the Bombay High Court dealt with the validity of a public notice. Section 13 of the Customs Act deals with the Duty on pilferage goods and Section 23 deals with the remission of duty on goods by the Assistant Collector of Customs, where it is shown to his satisfaction that any imported goods had been lost or destroyed at any time before clearance for home consumption. By a public notice issued by the Collector of Customs the importer was asked to obtain a certificate from the Bombay Port Trust authorities to prove pilferage. The learned Judge relied on two decisions of the Supreme Court where it was laid down that the authorities who are vested with quasi judicial powers cannot be controlled by directions issued by the Board and that,
“No authority however high placed can control the direction of a judicial or a quasi-judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department.”
26. In B. Rajagopala Naidu v. State Transport Appellate Tribunal [AIR 1964 SC 1573] and Ravi Roadways v. Asia Bi((1970) 2 SCC 259 : AIR 1970 S.C 1241) the Supreme Court said that where the power of the authority is quasi-judicial, the State Government is not competent to impose any restriction upon the exercise of that power by issuing executive instructions. Those cases arose out of Motor Vehicles Act.
27. Here the adjudicating authority as the name itself implies discharges quasi judicial duties and is vested with quasi judicial authority. It is he who should decide whether the prohibited goods shall be absolutely confiscated or shall be allowed to be redeemed in view of payment of fine. He has the power to do either and he has the discretion to decide either ways depending upon the facts of each case. This power given to him under the Act has been totally taken away from him by means of a public notice which directs him to re-export, in other words it divests him of the discretion, his power of adjudication in dealing with the prohibited goods which he confiscates.
28. The impugned public notice says in fact,
“You have no power to decide, you follow our instructions and order re-export.”
29. The discretion which legislation has given him has been stripped from him by a public notice. Para 16 referred to above cannot be read so as to include public notices which violate the provisions of the Act.
30. The other objections to the public notice has to be rejected. The decision to re-export has no bearing on anti-dumping policy nor is it intended to be so and the law relating to anti-dumping has its own procedure and its own machinery. The application of international laws are also not relevant. The domestic law has always treated fresh garlic as prohibited, so as far as the country of origin is concerned there is no change. The charge that Agricultural Ministry has no say in the matter also must be rejected. The Director General of Foreign Trade will have to necessarily take the view of the concerned Ministry which is affected by the subject import/export to frame its policy. The public notice is null and void not for the above reasons, but only because it ties the hand of the authority who was given the power to hear and decide, by the Parliament.
31. As held in 187 ITR 478 (cited supra), executive instructions cannot curtail the statute. The decisions relating to flexibility in law making can have no application. Courts have generally steered clear of interfering with fiscal policy, which can be “changed, altered or rescinded” [(1974) 2 SCC 348 (cited supra) and have accepted the need for continuous monitoring of the country's economy. The impugned public notice does not alter the public policy, it strikes at the power of adjudication of the authority, rendering him tooth-less. It is bad not because it infringes the petitioners' right to import as claimed by him, but because it infringes upon the adjudicating authority's power to decide.
32. As regards appellate remedy, in Ram & Shyam Company v. State of Haryana ((1985) 3 SCC 267),
“Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief Minister……. The clitch of appeal from Caesar to Caesar's wife can only be bettered by appeal from one's own order to oneself.”
33. To whom will the petitioners go, by way of appeal, with the executive fiat stuck on their heads? So the writ petition is maintainable. The public notice dated 20-06-2002 and the circular dated 25-06-2002 are quashed.
34. To sum up,
(a) Fresh garlic can be imported only under a licence, hence it is restricted or prohibited;
(b) The petitioners knew about the legal restrictions and yet they imported fresh garlic;
(c) Fresh garlic being a prohibited item can be absolutely confiscated subject to Section 125 of the Customs Act;
(d) The Authority under Section 125 of the Customs Act must adjudicate whether in the circumstances of each case the goods must be absolutely confiscated or whether the importer must be given the option to redeem the goods on payment of fine, penalty etc.,
(e) This power of adjudication cannot be taken away by a public notice.
35. However, as regards the relief of mandamus, the matter is sent back to the Collector of Customs who shall exercise his powers under Section 125 of the Customs Act and decide whether to permit the petitioners to exercise their option or to absolutely confiscate the goods. These writ petitions are partially allowed. No costs. The connected W.P.M Ps are closed.