TMI Blog1991 (3) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... re the agents of the suppliers M/s. Fibre Products of Canada Company Ltd. The clearance of the goods was claimed under OGL 1/88-91 dated 30-3-1988 vide Appendix 6 List 8 Part II S.No. 626 of the ITC Policy AM 1988-91. The importers have declared themselves to be the actual users of the goods. On examination of the goods, it was noticed that the bales contained used synthetic skirts which were cut only once and in the opinion of the Customs authorities they could be used with minor repairs of one lengthwise stitching. It was also observed that many of the bales contained pieces of synthetic pants mutilated by a single cut and in the opinion of the authorities it was easy to form another pant with minor repairs after matching identical pieces. While most of the bales contained the above two items there were also other wearing apparel with mutilation considered to be minor by the authorities and the repairs could be carried out so as to make them reusable. 1.2 It was also alleged that the value of the goods was under-declared as compared to the recent imports of similar goods through the Port of Bombay where it was noticed that old synthetic rags were imported from U.S.A. at price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 10,00,000/. He has also imposed a personal penalty of Rs. 1,00,000/-. 2. Learned consultant for the appellants has now urged against the aforesaid impugned order of the Collector that the goods were imported as per the contract dated 10-2-88 when the Import Policy, 1985-88 was in force. Letter of credit for the said goods was opened on 29-2-88 as per the telex from Oriental Bank of Commerce Port Bombay to Bank of Montreal, Canada. He, therefore, submits that a firm commitment had been made in terms of the previous ITC Policy, 1985-88 and therefore, the goods should be deemed to have been covered by the aforesaid Policy. For this proposition he relies on Tribunal s judgment in the case of Jain Sudh Vanaspati Ltd. v. CCC, Bombay [1990 (29) ECR 321]. In terms of the said Policy, the goods are covered for importation under OGL in view of the Tribunal s judgment reported in 1988 (35) E.L.T. 718 (Kakkar and Company and others v. CC, New Delhi) which has been confirmed by Supreme Court as reported in 1989 (42) E.L.T. A44 (SC). The department s review petition thereafter was also rejected as reported in 1989 (44) E.L.T. A26 (SC). 2.1 As regards the importation under 1988-91 ITC Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on be deemed to have been covered by the ITC Policy, 1985-88, we observe that this plea was never taken before the adjudicating authority nor has been taken in the memorandum of appeal before the Tribunal. Since this plea would require an enquiry into facts which were not available before the adjudicating authority we do not allow this plea to be taken by the appellants at this stage. Accordingly, his reliance placed upon Tribunal s judgment in the case of Kakkar Co., mentioned supra which has been given in the context of ITC Policy, 1985-88, and on Jain Sudh Vanaspati, mentioned above are of no relevance so far as this matter is concerned. 4.1 Goods have been imported under the ITC Policy, 1988-91 and the claim has been made by the appellants under OGL Order No. 1/88-91, dated 30-3-88 (S.No. 14). It allows import of woollen rags/shoddy woollen/synthetic rags to actual users (industrial) subject to certain conditions. The conditions in respect of the woollen rags as given in the said S.No. 14 and which is the subject matter of the controversy in this case are reproduced below :- 14(i) Import of woollen rags/shoddy wool/synthetic rags will be allowed only when these are impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means (i) restoration after injury or decay (ii) supply of loss (iii) sound condition (iv) condition in respect of soundness. From the aforesaid meanings, it is clear that the expression repair in relation to rags, according to the definition given in the ITC Policy as reproduced above, would mean that the old clothing cannot be brought to its sound condition or restored to its original condition merely by repair. Mutilation of the rags is another condition for importation. Examination report in respect of the consignment is given below :- Q7 Opd. and inspd. 8/7 pkgs. under BR marks contents. Textile rags in each- (1) These are not completely premutilated synthetic woollen rag as per the Norms laid down in P.N. No. 33/88. (2) Fumigation Certificate has not been produced. Samples for test of both the items of the invoice put up Vide T.M. No. S3I/574/1988 Ap. Cus. Pkgs. kept open for AC. inspection." [emphasis supplied] It is, therefore, clear that the fact that the goods imported are textile rags i.e. woollen and synthetic rags, has not been questioned at all. The question mark only is about its complete mutilation in terms of the norms laid down in terms of P.N. No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of anything to the contrary, operate retrospectively, in the sense that they apply to all actions after the date they come into force. Even though the claim on which the action is based may be of an anterior date [ AIR 1964 SC 1256 - Menon Abdul Karim Haji v. Dy. Custodian General, New Delhi Others].Therefore, the controversy raised by the appellants that the P.N. 33/88 is undated in the first instance and that it cannot be inferred therefrom that it is prevalent before the importation of consignment in question is of no consequence. It is admitted to the appellants that the P.N. 33/88 was available at the time of examination of the goods as is apparent from the examination report extracted above. The Customs authorities were, therefore, well within their rights to impose this condition on the rags which were yet to be cleared from the Customs. But it is seen from the records that the appellants shied away from the imposition of this condition and they actually stated in their reply to the show cause notice that the goods may be allowed to be cleared without insisting on further mutilation . It is, therefore, apparent that in terms of the prevailing position of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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