CALCUTTA HIGH COURT

                                        Continental Marketing Pvt Ltd

                                                         Vs

                                               Vs. Union of India

                                             (Dipak Kumar Sen, J.)

                                                   30.08.1985

                                                 JUDGEMENT

Dipak Kumar Sen, J.

( 1. ) M/s. Continental Marketing Pvt. Ltd., the appellant No. 1, carries on business of import and
export and in course of its business imported into India under valid licences 2973.6 Kgs. (59
rolls) of Polyester plastic unsupported, of the specification 12 micron x 1020 mm x 3000 meters
and 10.920 Kgs. (104 rolls) of the said material of specification 25 micron x 1020 mm x 3000
meters by the vessel "Cristobal Maru" which arrived at Calcutta on or about the 23rd September,
1982.

( 2. ) THE Appellant No. 1 thereafter filed a bill of entry for warehousing the said goods which
were landed at the Port of Calcutta. THE said goods however were not warehoused and have
been lying at the Port till date. Sometime in January 1983, the Appellant No. 1 applied for
release of the goods for home consumption and submitted necessary documents for calculation
and levy of customs duty. The Customs Authorities assessed that basic customs duty of 100%
plus auxiliary duty as also an additional duty under Section 3 of the Customs Tariff Act, 1975
read with Chapter 15A of the Central Excise, were leviable on the said goods. The Appellant No.
1 contended that under Notification No. 228/76-Cus., dated the 2nd August, 1976 as amended by
Notification No. 443/76-Cus., dated the 29th November, 1976 the goods were exempt from the
additional duty under the Customs Tariff Act, 1975 and sought to clear the goods on payment of
customs duty only. The contentions of the Appellant No. 1 were not accepted by the Customs
Authorities.

( 3. ) ON the 12th April, 1980 the Appellant No. 1 and Sriniwas Rastagir the Financial Controller
and the constituted Attorney of the Appellant No. 1, the Appellant No. 2, moved this court under
Article 226 of the Constitution against the Union of India, the Collector of Customs and the
Assistant Collector of Customs, Group 11, Calcutta, who were impleaded as the Respondents to
the application. They are also the Respondents before us in this appeal. On the 3rd May, 1983, a
Rule nisi was issued on the writ application calling upon the Respondents to show cause why
appropriate writs should not be issued and directions should not be given directing them not to
levy or demand any additional duty under the Customs Tariff Act on the said goods and directing
them further to release the goods after realising only the Customs duty and issue a detention
certificate. An interim order was also passed as follows: "...subject to the petitioner paying usual
customs duty and auxiliary duty and as regards the countervailing duty the petitioner must pay
50% of the same in cash and furnish a Bank guarantee for the remaining 50%. The Bank
guarantee must be furnished within a period of six weeks from date to the satisfaction of the
Collector of Customs, Calcutta. Till such Bank guarantee is furnished the petitioner shall deposit
an equivalent amount in cash with their Advocate-on-record". ;