TMI Blog1994 (2) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... t `Import Permit and Phytosanitary Certificate' are no longer required for the import of plant and plant materials meant for consumption, or sowing/planting imported as accompanied baggage and through Postal Channel. 4.When the parcels of the flower seeds arrived by post, the Asstt. Collector of Customs (PAD) first issued a letter dated 17th June, 1992 and then show cause notices on 26th June, 1992 and then on 6th July, 1992 by which the petitioner was requested to produce guarantee certificate from Plant Protection Adviser, West Bengal, Invoice/Packing list and other documentary evidences regarding the value of the goods. 5.The Directorate of Plant Protection Quarantine Storage Plant Quarantine Fumigation Station at Garden Reach Road, under the Ministry of Agriculture issued certificates dated 18th July, 1992 and 18th August, 1992 in respect of Post Parcel No. C. 131660 of 6/92 and Post Parcel No. C-A 9058/L of 6/92 respectively to the respondent No. 3, Asstt. Collector of Customs (PAD), that the said parcels had been inspected and the same were recommended for release. 6On 26th August, 1992, a clarification was issued. by the Joint Chief Controller of Imports E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were withheld by the respondent No. 3. 13.Since the said consignments of flower seeds were not released, the petitioner had to furnish a P.D. bond dated 10th September, 1992 to get the consignments of the flower seeds released on the basis of provisional assessment. 14.On 5th March, 1993, the impugned show cause notice was issued by the respondent No. 3 relating to the aforesaid 3 consignments of flower seeds even before completing the final assessment asking the petitioner to show cause why a sum of Rs. 2,44,942.35 which has been allegedly short-levied should not be paid by the petitioner. 15.At the hearing before me, Mr. Ashutosh Daw, learned Counsel appearing for the respondents has contended that unless the conditions laid down in Notification No. 265/88-Cus., dated 28th September, 1988 as amended, the duty has to be levied on the imported seeds unless a valid permit for such import is produced. Since the petitioner did not produce permit in Form `D' the authorities were justified in issuing the impugned show cause notice. He has also submitted that the Customs Department is bound to follow the notification issued by the Customs Department and any other noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Destructive Insects and Pests Act, 1914 ( 2 of 1914). 18.In exercise of the powers conferred by sub-sec. (1) of Section 3 of the Destructive Insects and Pests Act, 1914 (2 of 1914), and in supersession of Plants, Fruits and Seeds (Regulation of Import into India ) Order, 1989 for the purpose of prohibiting and regulating the import into India of agricultural articles mentioned in the said Order, the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 was promulgated. The said order is a statutory order. Paragraph 3(3) of the said order provides as follows :- 8(i)The Competent Authority shall issue permit in Form `C' for import of seeds and fruits for consumption and in Form `D' for import of seeds and plants for sowing or planting, if he is satisfied that the applicant meets all the necessary conditions; The issue of permit may be refused or withheld by the(ii) competent Authority after giving reasonable notice to the applicant and for reason to be recorded in writing; The import permit issued under this clause shall be valid(iii) for a period of six months provided that the Competent Authority may, on request, extend the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of the powers conferred by sub-section (1) of section 3 of Destructive Insects and Pests Act, 1914 (2 of 1914), the Central Government hereby makes the following amendment in the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989, namely :- (1) This order may be called the Plants, Fruits and Seeds1. (Regulation of Import into India) Amendment Order, 1991. It shall come into force on the date of its publication in(2) the Official Gazette. 2. In the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 in paragraph 3, in sub-paragraph (9), for the proviso, the following provisos shall be substituted, namely :- Provided that Plants, Fruits, Seeds and any other material of plant origin imported for consumption shall be allowed to be imported without an import permit. Provided further that such material imported as accompanied baggage and through International Postal Channels shall be allowed to be imported without a Phytosanitary Certificate or an Import Permit. The said notification was published in the Official Gazette on 20th January, 1992. 24.One of the conditions in the Customs notification dated 28th September, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signment, alongwith the bill of entry. Plant Quarantine Formalities are to be completed as per the(ii) provisions of PFG Order, 1989, before the consignments are taken out of the Port Area. Before the consignments are recommended for release or(iii) otherwise to the Customs Department, the importers have to pay Plant Quarantine Inspection fee as being done presently. In view of the aforesaid circular read with the notification of the Ministry of Agriculture dated 20th January, 1992, the Customs authorities cannot insist on production of import permit in Form `D'. 26.Thereafter, on 26th August, 1992, the Jt. Chief Controller of Imports Exports also issued a clarification which is to the following effect : Subject : Clarification of Import Policy on seeds of vegetable and flowers Gentlemen, With reference to your letter No. M-15 dated 25-8-1992 on the above subject, I am to inform you that `seeds of flowers' is `freely importable' in terms of para-22 of the Import Export Policy, 1992-97, read with Item No. 5(i) of the excepted list, appearing below Item No. 11 of para 156A of the Policy Book, 1992-97. Kindly acknowledge receipt. 27.As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial imported as accompanies baggage or through2. International Postal Channel for consumption, or sowing/planting shall be allowed without Import Permit and Phytosanitary Certificate. Plants, Fruits3. Seeds or any other materials of plant origin if imported as cargo for sowing/planting shall require both Import Permit and Phytosanitary Certificate. However, other conditions, requirements and procedure remains the same, i.e. All the bills of entries pertaining to plant(i) plant materials imported shall continue to be processed and endorsed to this office for Plant Quarantine Inspection and realisation of Inspection fee as usual. All the consignments of Plants, Fruits and Seeds imported(ii) through Postal Channel and as accompanied baggage shall also continue to be referred to Plant Quarantine formalities and realisation of fee before release. All concerned may please be advised accordingly. Yours faithfully, (M.P. Misra) Dy. Director (Entomology) . 29.Upon receipt of the said letter, the Collector of Customs on 1st October, 1992 addressed a letter to the Director (Customs), Central Board of Excise Customs, to the following effect : - Sir, Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be allowed without Import Permit in Form `C' issued by this office but requirement of Phytosanitary Certificate and P.Q. Formalities are essential. All such materials imported as accompanied baggage or through2. International Postal Channel for consumption, or sowing/planting shall be allowed without Import Permit and Phytosanitary Certificate. Plants, Fruits3. Seeds or any other materials of plant origin if imported as cargo for sowing/planting shall require both Import Permit and Phytosanitary Certificate. However other conditions, requirements and procedure remain the same i.e. (i) All the bill of entries pertaining to plant plant materials imported shall continue to be processed and endorsed to this office for plant quarantine inspection fee as usual. All the consignment fo Plant(ii) Fruits Seeds imported through postal channel and as accompanied baggage shall also continue to be referred to Plant Quarantine formalities and realisation of fee before release. All concerned in assessment and clearance shall follow the directives scrupulously. Dated, the25th June, 1992. Customs House, Calcutta . No.-S 60-70/92A(G) (K.N. Gupta) ddition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order had been superseded by the 1989 order and accordingly the question of any production of permit in terms of 1984 order does not and cannot arise at all, the Customs Authorities cannot act in terms of 1984 order which was repealed by the 1989 order. The amendment in Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 if not imported into the Customs Notification also, would render the Customs Notification unworkable and of no effect. 35.Even assuming that there is any inconsistency between the two notifications, one issued by the Customs Authorities on 28-9-1988 and the other by the Ministry of Agriculture on 15-6-1992, both of them being statutory notifications should be harmoniously construed. As I have already said that the import of seeds is regulated by the Ministry of Agriculture and accordingly the relaxation of the condition granted by the Ministry of Agriculture will prevail over the notification of the Customs Authorities as the Customs Authorities do not have any independent power to curtail the import unless such curtailment is warranted by the import policy or by the modification of the concerned Ministry regulating the import of such material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In A.V. Fernandez v. State of Kerala, 1957 SCR 837 : AIR 1957 SC 657, while interpreting the provisions of a fiscal statute viz. the Tranvancore-Cochin General Sales Tax Act, this Court observed as follows : - It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. Similarly in State of Maharashtra v. Mishri Lal Tarachand, (1964) 5 SCR 230 : AIR 1964 SC 457, while interpreting some of the provisions of the Bombay Court-fees Act, Raghubar Dyal, J., speaking for the Court observed as follows : - The Act is a taxing statute and its provisions therefore, have to be construed strictly, in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been provisionally assessed, it is the date of adjustment of duty after final adjustment. Prima facie, there is, therefore, substance in the respondents' contention that the relevant date has not come and that, consequently the officer did not have the power to issue the show cause notice. The respondent authorities are themselves of the view that until the finalisation of the assessment, no show cause notice under Section. 11A of the Act could be issued. Reference may be made to the decision of the Tribunal in the case of Vijay Tank Vessels Pvt. Ltd. (supra), in which the Tribunal stated : `We would also like to note that while the RT. 12 assessment was itself made on 31-12-1985 show cause notice was issued even prior to that on 4-2-1985. We are at a loss to understand how a show cause notice could be issued under law even before the finalisation of the assessment on the RT 12.' It was submitted on behalf of the petitioner (which submission is not disputed by the respondents that the respondents have not finally approved the classification list with regard to Chromo Board till today. Therefore, the condition precedent to the exercise of power under Section 11A( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the petitioner is that had the reply to the impugned show-cause notice been given, the Court would not have entertained the writ application and accordingly no reply was given. 42.I do not find any substance in the contentions raised by the learned Advocates appearing for the parties. If the show cause notice is without jurisdiction, the Writ Court can interfere irrespective of the fact whether the importer has replied to the show cause notice or not. Mere submission of a reply to the statutory Authority against the show cause notice does not by itself take away the right of a citizen to challenge such show cause notice, if such showcause notice is without jurisdiction. In this case, as I have already indicated that no duty is leviable on the imported seeds subject to the compliance with the Customs Exemption Notification No. 265/88-Cus., dated 28th September, 1988. The show cause notice was issued on the ground that one of the conditions regarding the production of valid permit in terms of the said notification was not complied with. The only dispute is, therefore, that whether such conditions is still applicable to the import of such seeds. In view of the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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