Under Section 20 of the Customs Act, 1962, if goods are imported after they have been exported then the import is liable to duties, conditions and restrictions that goods of the same kind are liable to. Polysetthy did this and the question arose as to the payment of duty by it. The battle against the demand and payment of duty was taken by Polysetthy to the high court by way of a writ petition which was allowed in its favour. However, the government of India went in appeal to a division bench of the same high court, Having lost there they filed an appeal before the apex court in 1995. The issue was the liability of the company and whether that had been legally discharged.

The apex court seems to be uncertain of the facts before it since it begins by saying "it would appear that on reimportation of the goods they were allowed to be cleared without payment of duty under Section 20 of the Customs Act on the strength of a bond under the Central Excise Act". Now either the company was allowed to do this or it was not. The language "it would appear" is not the normal language which the Supreme Court uses in the disposal of cases. Since this was the substratum of the whole case, it is surprising that the apex court chose to dispose of the matter without making sure of the facts. All it had to do was to ask the government of India to produce the relevant documents if these were not annexed to the appeal. That of course raises the question as to how the petition was numbered, registered, heard and allowed to become an appeal by the registry of the apex court if the relevant papers were not annexed to the government of India's petition. Further why is it that the judges did not send thematter back to the registry for fulfilling these basic requirements.

What is certain from the apex court's order is that the company was allowed to clear the goods without payment of the requisite duty and after this only the government of India issued a notice to the company under Section 20 of the Customs Act for the payment of the excise duty due on goods of the like kind. This is what can be understood from the apex court's order even though its sentence seems to indicate that the excise duty was payable when the goods were exported again after import although Section 20 imposes a duty on the even of reimportation. This is clear from its sentence which states: "It is only thereafter that the respondent was issued with a notice to pay duty under Section 20, which was the excise duty that had not to be paid when the goods were exported. "The words `not to be' are an obvious error and the words should read `not been paid'". But the era of care and concern for the quality of orders issued to the public seems to be disappearing.

The company replied to the notice issued by the government of India, it stated that the goods were in a bonded excise warehouse and excise duty would be paid when they were cleared therefrom for use in manufacture. Now this was the crux of the matter as the company admitted its liability to pay the duty and obviously still did not pay it. The apex court as the last court constitutionally armed with the specific power of passing orders in the interest of justice in a case was expected to ask the government of India as to how and why the company had been allowed to clear the goods without payment of the admitted excise duty liability.

Unfortunately the court did not do so. It does not appear on the record how and why the goods were allowed to be cleared without payment of duty under Section 20 and the only inference can be that the customs authorities then honoured the excise bond which they now seek to impugn. "Now the customs were either indulging in frivolous litigation simply for the record so that no action could be taken against the concerned officers by pointing out that the matter had been litigated and the court had approved the clearance. If so then public interest required that the apex court get to the bottom of this practice and protect the public revenue. Or the government of India's advocates were doing a shoddy job of presenting the relevant facts before it for reasons best known to them. In that case also the apex court had a duty to find out why is it that the government of India was appealing to the apex court and yet not presenting the facts that needed to be presented. To permit this was to permit such advocacy andadvocates to continue this manner of treatment of public revenue cases and the court itself.

Further what was the nature of the excise bond that the court says the customs authorities had honoured and which they were seeking to impugn. None of these facts are known from the order with which the apex court bench of Justices SP Bharucha, RC Lahoti and Santosh Hegde disposed of the matter. The Supreme Court's orders are supposed to have precedent value. But how does precedent work if the relevant facts are not stated by the judges in the order. The practice of increasingly writing orders instead of judgments to dispose of public revenue matters is destroying this precedent oriented justice system. This only ensures that advocates are unable to guide clients as to whether to resort to court litigation or not. This helps in the creation of a bar of tax or revenue advocates who without applying their mind simply tell every client having a tax liability to give his papers, pay the money and file a petition hoping that good luck will prevail. This tends to destroy the rule of law under which cases having thesame facts are supposed to be decided under the same law in the same manner.

The issue still left in terms of the order itself was whether the company according to its own reply had cleared the goods from the excise bonded warehouse or not. If it had then how did it do it without payment of excise duty. On this the apex court is again supremely vague. It says: "Secondly, it may well be that by now the goods have been cleared from the bonded warehouse and excise duty has been paid thereon. Allowing the appellants to collect duty under Section 20 would be tantamount to allowing double taxation." Either the goods were cleared and excise duty paid or they were not cleared. Hence there was no question of "it may well be" concerning the clearing of the goods. Moreover surely the government of India having filed the appeal could not say that it did not know about this. If its appeal was not clear on this issue then what was the appeal about? The apex court's order does not answer this question which the judges should have asked in the context of the case. An answer cannot be found by thirdparties since the apex court has stopped by an oral order access of even the press to the petitions filed by the parties. In any event if the court was unsure about the fact then how did it conclude that asking the party to pay would amount to double taxation.

Lastly, the court declared that in the circumstances it did not feel inclined to go into the precise connotation of a bond under the Customs Act. But having made this statement no reasons have been given by it for this when the bond and its nature would have determined the liability or otherwise of the company. Surely this is no way to dispose of public revenue appeals under a constitutional system of a rule of law backed by reason which is the hall mark of judicial discipline and a public Indicator of justice not only being done but being seen to be done.