TMI Blog1987 (12) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... Impex as mentioned hereinbefore and various other organisation and clearance of the same by the Customs authorities, the petitioner entered into a contract with M/s. Cargill of France for importation of approximately 1410 M.T. of rapeseeds. 4. On 12th June, 1987 the petitioner also obtained the permit bearing No. 951/87-PQP for import of about 1400 M.T. of rapeseed from Government of India, Ministry of Agriculture Rural Development. 5. The foreign exporter shipped 15 consignments of rapeseed of French origin on board the vessel Fresh Ocean on 20th May, 1987 covered by 15 several Bills of Lading. The foreign exporter also raised three invoices for the said consignments of rapeseed the FOB value of which is about 2,94,731 equivalent to Rs. 38,50,000/- (approximately). 6. The petitioner is required to pay freight amounting to approximately Rs. 10 lakhs. The total involvement in the said 15 consignments of rapeseed is as follows :- (a) FOB value Rs. 38.5 lakhs (b) Freight Rs. 10.0 lakhs Total Rs. 48.50 lakhs 7. The petitioner had engaged Clearing Agent, M/s. Loknath Shipping for clearance of the said consignm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Govt. of India Undertaking) under Open General Licence on the basis of foreign exchange released by the Government in its favour. Imports, distribution and their pricing will be made by the STC/Hindustan Vegetable Oils Corporation, New Delhi as per the connected policy of the Government, in the Ministry of Food and Civil Supplies, Department of Civil Supplies. Rapeseed oil/seeds. 13. I am however unable to accept this contention of the Customs authorities for more than one reason indicated hereinafter. 14. Chapter IV of the said Policy deals with canalisation of imports. Paragraph 76 of Chapter IV provides as follows: 76. The holder of a REP Licence may effect direct import of those canalised items as appear in that licence, upto the extent permitted therein or which can be imported against the licence under any specific provision in this policy. In such cases the condition referred to in sub-para 70(2) above will apply. 15. In terms of para 225 and para 226 of Import Policy, REP licences are freely transferable to any person and without any conditions for its use upon importation. The petitioner has obtained REP import licences as a transferee. Para 225 and para 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r registered exporters. Paragraph 195(1) in the said chapter provides as follows: 195(1). The items permissible for import against each export product covered by this policy are given in column 4 of the Policy statement given in Appendix 17, read with column 5. 19. Appendix 17 of the Policy contains the description of the export products covered by the policy for registered exporters, the percentage of import replenishment and materials allowed for import against each products as well as other conditions relating thereto. Appendix 17 has classified the export products under various product groups. 20. Thus in terms of Para 195(1) the items permitted for import against each product covered by the Import Policy are given in column 4 of the policy statement in Appendix 17 read with column 5. The relevant product group for the purpose of this case is G.2(l)(a). 21. There is only one remark at column (5) which reads as In case of item (c) in column 4, please see para 8 of General Condition in this Appendix. 22. It is necessary to set out paragraph 8 of the General Conditions of Appendlx-17 which is as follows:- 23. Against certain export products, for example Sl. No. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt licences and as specifically mentioned in column 4 as per entry (d) against the export product G. 2(1) of Appendix 17. 27. Against the export products specified against G.2(i)(a), materials permitted for import includes seeds. The products specified against column 4 under sub-heading (d) are seeds/bulbs/mother plant, germ plasm . Paragraph 197(1) of the Policy provides as follows: 197(1). The holder of a REP Licence may effect direct import of these canalised items as appear in that licence, upto the extent permitted therein or which can be imported against the licence under any specific provision in this policy. In such cases, it shall be a condition that the importer shall furnish particulars of the imports made to the canalising agency concerned in the prescribed proforma appearing in Appendix IV.F of the Hand Book of Import-Export Policies, 1985-88. At the time of clearance, the importer will be required to declare to the customs that these particulars regarding the consignment sought to be cleared have been sent to the concerned Canalising Agency viz.........vide letter No...........dated.........Failure to comply with this requirement will entail penal action under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Column 2 of G. 2 (i)(a) as import replenishment to aforesaid exports. Items of column 4 i.e. Seeds/Bulbs/Mother Plant/Germ Plasm have been specifically permitted for import. There is no remark whatsoever in column 5 against the aforesaid item i.e. seeds etc. restricting the import of items in question or for applicability of paragraph 8 of General Conditions of Appendix 17. The General Conditions are applicable to only those entries in Column 4 which describe the items in general terms as items of Appendix 3 and 5. For examples column 5 remark at A-46, A-56, A-64(i), A-64(ii) a, A-70, A-71, A-85. A-93, A-102, B.11.1, B.11.2, B.17.3, B.20.B. (i) also column 5 remark is found but it is specifically for item (c) i.e. Chemicals appearing in Appendix 3. It is therefore evident that no (?) General Condition as contained in para 8 was not intended to be applicable to item (d) i.e. seeds/bulbs/mother plant/germ plasm" as made applicable to item (c) of G.2.(i)(a). 31. It would be evident from Appendix 17 that so far as items seeds/bulbs/mother plant/germ plasm are concerned there is no restrictive condition in Column 5. There is also no qualification regarding the seeds/bulbs/mothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said imports were covered by relative import licences. Similarly, Agro Impex imported 9 consignments of rapeseed on the strength of similar import licences in the month of April 1987 and Calcutta Customs cleared the same. 34. It is, however stated in the affidavit by the respondents that the clearance was made by mistake, but no particulars have been given when and how the alleged mistake was detected. 35. The holders of REP licences buy such licences at a consideration. Unless they are allowed to import the items mentioned in the REP licences they would not have purchased such licences. It is not that because the items are canalised no import can be made by any private agency. The only conditions as would appear from the Policy as well as the affidavit by the respondents is that the REP licence holders are not entitled to import canalised items unless specifically authorised by the Chief Controller of Imports Exports, New Delhi or upon compliance with the conditions laid down in the said Policy. The goods have already been imported. They have arrived at the destination. There is no other allegation against the petitioner except that it is a canalised item and accordingly it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nication. Secondly, public in general were not informed by subsequent issue of any REP Circular and/or Public Notice to the effect that Seeds . in column 4 against export product G.2(i)(a) would not cover Rape Seeds. No such circular or public notice was issued by licensing authorities nor was any trade notice issued by the Customs authorities. 37. In this case, the Importers have imported rapeseed prior to 20th May, 1987 and accordingly this clarification cannot govern this present shipment. It is only on 11th August, 1987 the Clearing Agent informed the petitioner as follows: With reference to the above we have to inform you that Customs are taking a negative stand and we do not expect them to clear Rapeseed against REP licences. We understand that they have recently filed an appeal against their previous order of clearance in the case of M/s. Agro Impex and M/s. S.V.A. Udyog Vinlyog Ltd." This is has been relied on by the Customs authorities but as indicated earlier the consignment had already been imported and arrived at much prior to the said inter-departmental clarification received by the Customs authorities. Even if appeals or revisional applications were filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Customs reported in 1985 (4) ECC 60. 39. I am, therefore, of the view that even if there be any doubt which the Customs department and the Chief Controller of Imports Exports allegedly entertained on the question whether the rapeseeds can be imported under REP licences in view of the provisions contained in the Import Policy, such doubt has to be resolved in favour of the petitioner and the Customs authorities, therefore, cannot withhold the release of the consignments already imported. In other words if the interpretation of a fiscal enactment is open to doubt, the construction most beneficial to the subject should be adopted. 40. Admittedly the subject goods are exempt in terms of the Notification No. 127/77 read with Notification No. 207/87 from Customs duties and accordingly the question of evasion of duty does not arise in this case. The only ground on which the imports are held to be unauthorised is that goods have not been imported with the previous permission of the Chief of Controller. This objection in my judgment has no basis at all having regard to the permission obtained from the Government and the terms of the REP licences. Whether or not after the release ..... X X X X Extracts X X X X X X X X Extracts X X X X
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