TMI Blog1989 (10) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... e said licence, as the goods imported were soft shell Almonds which were direct consumer agricultural product ready for consumption as dry fruits . Further, the almonds were covered by entry 121 of Appendix 2 Part B of AM 1985-88 Policy, and in terms of para 5 of Appendix 17 of the same Policy, they could not be imported as seeds. Moreover, the imported goods were not related to Export Product Gr of G2(i)(a) entry and required specific licence under para 181(3) of the Policy. A show cause notice dated 16.3.1989 was accordingly issued to the appellants, to the effect that the import was in contravention of the provisions of Sec. 3(1) of the Imports and Exports (Control) Act read with Cl.3 of the Import Control Order, 1955, and hence liable to confiscation. The appellants submitted their written reply on 17.3.98 and pleaded that goods imported were seeds capable for germination, and cannot be considered as consumer item since they cannot be consumed without removing the shell. They also pleaded that Almonds were generally used as raw material for other product. They also raised a plea that Almonds are not specifically mentioned in Appendix 2 Part B or Appendix 3 Part A, and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Policy, which have been taken as the basis in the order Re. MM Import cannot be made applicable. He submitted that here the only point that has to be considered is whether the licence permits import and not whether Policy allows it. In support of his said submission, Mr. Nankani cited the decision of the Bombay High Court in Bipinchandra Vrajlal Ghelani v. Union of India, 1987(31) E.L.T. 694(Bom). He also submitted that if the licence permits import, the customs authorities are bound to clear the goods and for this purpose, he placed reliance on the decision of the Bombay High Court in Lokash Chemical Works v. M.S.Mehta 1981 E.L.T. 235 (Bom). Mr. Nankani then submitted that as per the licence, the appellants were entitled to import seeds and then submitted that all the nuts are seeds and relying upon the decision of the Calcutta High Court in M.D. Agarwalla Ors v. Director of Entry Tax, 1978(41) Sales Tax Cases 258, submitted that Almonds in shell are nuts. According to him, though the decision of the Calcutta High Court is in different set of facts and legislative enactment, the ratio of the said decision would stand attracted here. He also cited before us, Para 768 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that, he cited in 1986(7) ECR 379, and then took us to page 45 of the Explanatory Notes of Vol. 1 where Almonds are included as nuts. He then took us to page 65 of the said Notes, and referred to item 12.01, where Almonds are specifically excluded from seeds . He further submitted that the appellants have, for the purpose of import, classified the Almonds in shell as seeds falling within Chapter 12 whereas, for the purpose of payment of duty, they claim applicability of Ch.8. He relied upon the decision of the Bombay High Court in Greaves Cotton Co v. Union of India, 1989 (43) E.L.T. 263, and submitted that classification of goods cannot be made differently for the purpose of ITC and Customs duty. He also urged that, what is to be considered is the predominant use, and for that he cited the decision of Ashish Co v. Collector, 1986 (25) E.L.T. 115 (Tri) = 1986 (7) ECR 428. 5. From what has been urged before us, the first point that has to be examined is whether the Almonds in shell are seeds, importable under the licence as seeds. 6. Undisputedly the import licence in question is issued under the provisions of Imports Exports Control Act, and the provisions of Import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir import into India. 10. In view of the above, even going by what is permissible under the licence, and not considering the provisions of the then existing Import Policy, the only conclusion that can be drawn is that Almonds in shell are not importable as seeds, on account of they being not permissible under the Import Control Order. 11. Mr. Nankani, the learned advocate, has referred to several Reference Books as also, a decision of the Calcutta High Court Re: M.D. Agarwalla (supra) to show that Almonds are nuts. What is material for us here is how Almonds in shell are classified for the purpose of import and not how they are botanically known. The reference books cited therefor provide no assistance. The judgement of the Calcutta High Court too, cannot render any assistance, as the same was given, in relation to the provisions of the Sales Tax Act. 12. Though no conclusion is based on that, it is significant to note that in the Bill of Entry, for warehousing filed, though they have not filled up Column 7, relating to Customs Tariff, in Column 12, relating to CET, they have assessed duty payable under heading 0801.90. In the Central Excise Tariff, the said heading falls und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commercially acknowledged as falling within the category of dry fruits . Mr. Mondal, cited before us a copy of the News Paper Economic Times , where prevailing prices of different commodities in the internal major markets are quoted. There also Almonds have been categorised under dry fruit and not as seeds. This reputed economic daily recognises Almonds in shell as commodity known as dry fruits . 20. CEGAT WRB, has, American Dry Fruits Stores v. Collector 1986 (25) E.L.T. 975 (Tri) = 1986 (9) ECR 73, held that Almonds are consumer goods as they can directly satisfy human needs without further processing. 21. The Supreme Court has, in M/s. Indo Afgan Chamber of Commerce v. Union of India, AIR 1986 SC 1567, while dealing with the import of dry fruits has, amongst others, held Almonds as consumer goods of agricultural origin and not the raw material. The Supreme Court has also held that the same would fall within item 121 of Appendix 2 Part B of Policy AM 1985-88. Though the point at issue before the Supreme Court was little different from the one here, the finding given has considerable application to the facts of the case as well. 22. If the Almonds in shell are thus rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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