Provisions of Section 15 not applicable.

Both these writ petitions raise identical questions of law and for the purpose of appreciating that questions it is enough if I refer to the facts in W.P. 298 of 1979 alone.

2.The writ petition is for issue of a writ of certiorified Mandamus calling for the records relating to the Import department serial No. 000699 dated 13-2-1978 of the first respondent, to quash the order passed on 21-1-1979 by the first respondent and to direct the first respondent to release the goods without payment of any duty or additional duty.

3.The petitioner is a Public Limited Company registered under the Companies Act, 1956. It is carrying on business in the manufacture of Cotton Yarn, cotton/viscose blended yarn. For manufacturing cotton/viscose staple fibres blended yarn, the petitioner company is importing Viscose staple fibre yarn from foreign countries. It had imported under Open General Licence O.G.L. No. 3/78, 142 bales of viscose staple fibre (29999.8 k gs.) valued about Rs. 3, 11, 465 from U.K. by Steamer 'Clan Macnair' from Middles-bough Port (U.K.) to Madras. The goods were subject to levy of 100 per cent basic import duty under chapter 56 of the First Schedule of Customs Tariff Act, 1975. It was also further subject to Auxiliary duty of 20 per cent leviable under sub-section (1) of Section 32 of Finance Act, 1976 together with additional duty leviable under Section 3 of Customs Tariff Act.

4.By a Notification No. 388 dated 2-8-1976 issued by the Government of India (Ministry of Finance), Department of Revenue and Banking, in exercise of the powers conferred by Section 25(1) of the Customs Act, the Central Government exempted viscose staple fibre when imported into India from the whole of the duty of customs leviable under Chapter 56 of the First Schedule of the Customs Tariff Act. The exemption also applied to the whole of the additional duty leviable thereon under Section 3 of the Customs Tariff Act, 1975. By an earlier Notification No. 385, dated 23-7-1976, the Central Government exempted viscose staple fibre from the auxiliary duty of Customs leviable thereon under sub-section (1) of Section 32 of the Finance Act, 1976

5.In the present case, the goods were shipped by 'Clan Macnair' and the said ship entered into the territorial waters of India on 7-12-1978 and the vessel actually was berthed at North Quay on 4-1-1979. The Bill of Entry for Home consumption under Section 46 of the Customs Act, 1962 was prepared on 8-12-1978 and was received by the office of the Assistant Collector of Customs (Imports) Madras on 13-12-1978. In the column customs duty and additional duty mentioned in the Bill of Entry, it was noted as 'free' since the Notification No. 388 dated 2-8-1976 was in force at the relevant time. The sample of the consignment was tested and an endorsement identifying the consignment as synthetic staple fibre of cellulosic origin (viscose) was made on 14-12-1978. On 16-12-1978, the Assistant Collector of Customs made an endorsement for the release of goods. 'Duty foregone' was also noted on 18-12-1978.

6.Due to some operational risk, the unloading of the goods could not be done. The vessel was actually berthed on 4-1-1979. The department did not release the goods free of import duty. In order to avoid demurrage and wharfage, the petitioner requested the Assistant Collector of Customs (Imports) to permit the goods to be stored in a public warehouse under Section 49 of the Customs Act, 1962. However, the said request was refused and an order was passed on 20-1-1979 assessing the goods to basic duty as well as auxiliary duty in the following manner :

Rs.

Basic duty 100%3, 11, 465-00

Auxiliary duty 20%62, 293-00

Additional duty Rs. 1.50 per Kg.44, 999-70

5% special excise duty on C.V.2, 249-98

10% additional excise duty ...4, 499-77

It is under these circumstances, the present writ petition has come to be filed for the above said relief.

7.The contention of Mr. G. Ramaswami is as follows : The goods in this case entered the territor