TMI Blog1992 (9) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of prohibition commanding the respondents from giving any effect or further effect to the orders of adjudication being annexure `C' to `H' hereof and from levying any fine or penalty or from holding that the consignments of Synthetic Shoe Uppers imported or to be imported are not authorised under the REP licences in question and from demanding any fine or penalty. 2. The petitioner filed the said application challenging the order of adjudication passed by J.K. Batra, Deputy Collector of Customs, Calcutta dated 11-11-1987 being order No. S-33-40-41/87A(3). By the said order it was held that importation of footwear components shoe upper without a proper licence was prohibited under Section 11 of the Customs Act, 1962 read with Section 3 of the Imports Exports Control Act, 1947. The said goods were confiscated under Section 111(d) of the Customs Act, 1962 and in view of the fact that similar consignments had been allowed to be cleared in the immediate past against such REP licences, a lenient view was taken and option was given to the importer to redeem the goods on payment of a fine of Rs. 65,000/- on Noting No. 3323 dated 29-10-1987 and Rs. 33,000/- on Noting No. 97 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported materials should relate to the product exported in the instant case, it did not relate. It was alleged that the importations were unauthorised importations without a valid import licence. 5. On behalf of the petitioner it was submitted that the clarification dated 23rd February, 1988 made by the respondents could not amend the Import Export Policy. Under paragraph 25(2) of the Import Export Policy 1985-88, any interpretation of Import Policy given by the Chief Controller of Import Export would prevail over any other clarification in the same matter given by any other authority or person. The said paragraph did not and could not lay down that such clarification was binding on courts of law. It was further submitted that the Chief Controller could not amend the said policy by such clarification which amounts to amendment of the policy and the same can only be issued by a public notice. It was further submitted that no public notice was issued on this matter and as such the purported clarification could not be binding upon the petitioner. It was further submitted that the licences issued against export of product group D. 2.1(1) of Appendix 17 were valid for import of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port Policy 1985-88 provides - "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". It was submitted that column 5 remarks here have no co-relation or applicability at all with Item (j) of column 4. Therefore, it was submitted that in terms of Paragraph 195(i) item would be permissible for import in the "Footwear components including unit heels and soles". Reference was made to Import Policy of 1988-91. In the Import Policy 1988-91 at D. 2.1 Column 4(j) it is clearly specified that "Footwear components including unit soles and heels but excluding shoe uppers". "Out Import licences being of 1985-88 policy does not have such remarks, but are specifically covered to import footwear components. Nowhere it is mentioned in the licences that shoe uppers will not be permitted for import. Item shoe uppers are covered under the generic entry footwear components". 8. Serial No. D. 2.1(i) of the Appendix 17 of the Import Export Policy 1985-88 provides as follows : Serial No. Export product Import replenishment percentage Materials perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eels but excluding shoe uppers". On the basis of entries in the subsequent Import Export Policy, it was submitted that in the Import Export Policy 1988-91, the entry was "footwear components including unit sole and heels" and when the same was amended subsequently excluding shoe uppers, in that event, the authorities concerned were fully aware that the original entry included shoe upper, that is why, shoe upper was specifically included by subsequent policy. If shoe upper was not considered as footwear components, in that event, it was not necessary to exclude the same in the subsequent policy. This amendment throws light that the entry footwear components in the earlier policy included shoe uppers. 10. When an importer imports goods on the basis of an import licence, the validity of the importation has to be judged on the basis of the representation contained in the relevant Import Export Policy and not by any administrative or departmental clarification made from time to time. To an importer the guideline is the provision of the Import Export Policy which is published, printed and circulated for administration. In view of the provision contained in the relevant policy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The expectation may arise either from a representation or promise made by the authority, including an implied representation or from consistent past practice. The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review, it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so." 11. In the instant case, there was no overriding reason of public policy to justify a departure from consistent past practice. Relevant entry in the Import Export Policy as well as consistent past practice amounts to a clear and equivocal representation to the Board and to the public that such importation of such goods on the basis of such licence is valid and if any person acts on such representation, in that event, the respondents have no jurisdiction to hold it otherwise. After all, an importer can import any goods unlawfully, but change of view is not permissible in case of importation of goods by an importer who had bona fide relied on the representation contained in the policy as well as on the consistent pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case, the Customs authorities cannot be allowed to ignore their past practice and to adopt different standard and to take different views at different point of time with regard to the importation of the same commodity. It is their duty to inform the general public who are importing the goods and making it quite clear that what types of goods would not be allowed. Even if there is a dispute as to the interpretation of the Policy and the licence, the dispute should be resolved in favour of the subject". I respectfully agree with the views by the aforesaid two decisions which had been followed by the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta (supra). 12. In the result, the writ petition succeeds. The Order No. S.-33-30-41/87A(3), dated 11th November, 1987 passed by the Deputy Collector of Customs, Calcutta is set aside and the respondents are directed to make assessment of duty, clear and release the consignments which had already arrived and pending clearance in respect of the self-same goods on the basis of the REP licences issued under the product at Serial No. D. 2.1(i) of Appendix 17 of Import Policy 1985-88 treating the same as validly impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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