TMI Blog1988 (4) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... value in each B/E was declared Rs. 97,008/-; M/s. Shangvi Amritlal Chunnilalji filed two B/E with value of Rs. 66,130/- and Rs. 80,840; Arun Agencies in one B/E to the value of Rs. 97,008/-. The Custom House took the view that the goods imported, namely, Almond in shell, is nothing but dry fruits, of which there is no cultivation in India on a large scale, and that it is a consumer item of agricultural origin, falling under Serial No. 121 of Appendix 2 Part B of the import policy, the import of which is restricted, and not to be allowed against REP licence, except when an item is specifically mentioned therein in terms of para 5, Appendix 17 of the policy. It was also found that the import of dry fruits require specific licences under the policy. Show cause notice was therefore issued to the appellants. Personal hearing also granted to them which was availed of by some of them while others chose to have their case decided on the basis of written replies to the Show cause notice. The Collector after considering the written and oral submissions found that the licences produced were not valid to cover the import of Almonds in shell, which he held to be consumer goods, and confiscated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el also referred to the Pamphlet on Almond published by the Almond Board of California wherein it has been stated that Almond nuts are seeds. It was also argued that if the intention was to exclude Almond from the purview of permissible item in Appendix 17, it will be specifically done. In this connection he referred to the specific exclusion of Sodium Cyanide which though figuring against Appendix 2B was specifically excluded by Public Notice on 9-10-1986 from the purview of Appendix 17. It was further submitted that the Custom House had on a similar issue relating to import of Poppy seeds against Appendix 17, taken a lenient view in the matter of fine and penalty on adjudication, but no such leniency has been shown to the appellants herein, although admittedly the question whether Almond will be covered by entry in Appendix 17 or not was without ambiguity, and the Department itself had sought clarification from the Horticulturist and from the CCI also. Hence in any case, fine and penalty should be reduced. The Counsel further pointed out that the end-use is not relevant in the case of REP licence which are freely transferable, and in this connection placed reliance on the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to by the Collector, in the context of the large quantities imported, which is valid. The learned S.D.R. submitted that the appellants themselves have admitted before the Collector during the personal hearing that the goods are consumer goods. He further placed reliance on the order of the Tribunal in the case of M/s. Sapna Garments, Bangalore v. Collector of Customs, Madras decided by this Tribunal on 15-7-1986 in Customs Appeal No. 165/86, holding that it is not capability of use, but the aspect of general use of the imported goods, which has to be seen for deciding the validity of the licence. He placed further reliance upon the full Bench decision of the Delhi High Court in the case of Jain Exports Ltd. v. Union of India 1987 (29) E.L.T. 753 for the submissions that in dealing with the question of interpretation of the policy and any other matters relating to actual users of other class of importers, only the CC Import/Export is competent to give advice and that any interpretation of the import policy given in any other manner will not be binding in law. In this case, the Collector has obtained clarification from the CCI that Almond will not be covered by REP licence against se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee should be accepted. The Counsel further submitted that with regard to para 25(2) of the Policy to the effect that any interpretation of Import-Export policy given by the CCI will prevail over any other clarification in the matter given by any other authority, it was stated that this is essentially relating to the procedure to be followed for seeking any clarification, whereas in their case the certificate given by the Horticulturist to the Department was at the instance of the Custom House itself, and it was clearly to the effect that samples tested are Almond seeds which are viable and fit for soil. Further, the CCI has only stated that the goods are consumer items, and the Collector also has not disputed that the goods are seeds. In such a situation, as seeds are specifically covered against Serial G.2(i)(a) of Appendix 17, the import is permissible against REP licence. The Delhi High Court decision in Jain Export case is a decision by the High Court in exercise of its power of writ jurisdiction as distinct from the Departmental proceedings. It was also submitted that in respect of similar imports in Bombay Custom House only a lower fine in lieu of confiscation @ 100% o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MENT IS UNDER DETENTION REPLY BY RETURN TELEX IS REQUESTED. Telex clarification was provided by the CCI in their reply telex dated 19-11-1987 which reads as under : PLEASE REFYOURTEL DATED 23-10-1987 REGARDING IMPORT OF ALMONDS UNDER REP LICENCE (.) ALMOND IS A CONSUMER ITEM FALLING UNDER APPENDIX 2-B (.) THERE IS A SEPARATE POLICY FOR ITS IMPORT UNDER DRY FRUITS (.) ALMOND CANNOT REPEAT CANNOT BE IMPORTED UNDER REP LICENCE. This clarification had been put to the appellants during the adjudication proceedings, and their response was that Horticulturist s opinion was in their favour, and that if it was CCI s view that Almond imported are not covered by REP licence, then that authority should take steps to amend the policy itself. During the hearing before the Tribunal, it has been argued that the requirement to seek clarification only from the CCIE is more in the nature of laying down the procedure for the importers to follow in seeking clarification and that the Collector himself has admitted that the goods imported are seeds and that since they are not specifically appearing in Appendix 2 Part B, and as they are covered by the description seeds in Appendix 17, import wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed there from to appear in Appendix 2 Part B, because this would lead to enumeration of a very large number of items for the purpose of Appendix 2 Part B. In any case, on a specific reference, on this very consignment to the CCIE, categorical clarification has been given by that authority, which, as per the policy, should prevail and is binding in law. The arguments advanced that where two views are possible relating to a particular entry, the one favouring the subject should be adopted, cannot also be accepted because of the specific provision in the policy which lays down that CCIE s opinion regarding interpretation of the policy is final and authoritative. In this context the observations of the High Court in the case of Liberty Oil Mills v. Union of India (1984) 3 SC 465 relating to the context of formulation of Import/Export Policy could also be usefully referred to : The import policy of any country, particularly a developing country, has necessarily to be tuned to its general economic policy founded upon its constitutional goals. The requirements of its internal and international trade, its agricultural and industrial development plans, its monetary and financial strategi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u of confiscation under Section 125 of the Customs Act, 1962 are also relevant. The High Court had observed in para 71 of the judgment the amount of redemption fine would and must necessarily be determined by these considerations that it should not result in bonanza of profit for illegal transaction of import . The Court observed - No doubt the various features can be taken into account for seeing that a bona fide mistake may not unduly harshly penalise or cause irreparable injury to the importer but it seems to me equally plain that the resort to Section 125 of the Customs Act to impose fine in lieu of confiscation cannot be so exercised as to give a bonanza or profits for an illegal transaction of import. Some justification offered by the importer may be taken into account for not proceeding for personal penalty under Section 112 of the Act or for not proceeding under Section 135 of the Act against the importer. But there would appear to be hardly any justification for letting an importer make monetary gain from any illegal transaction of imports and/or exports . It is further found that the quantum of penalty on the appellant is very reasonable considering the value of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
