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TMI Blog2003 (2) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... re opened. The goods so imported arrived at Bombay Port in July, 1978. The petitioners on 28-7-1978 filed different Bill of Entries as there were different Bills of Lading. It is stated that as per Notification dated 2-8-1976 issued by the Customs Authorities skimmed milk powder is required to have a fat content more than 4 per cent. Milk which was imported by the petitioners was got examined by the Customs Authorities and it was found to contain fat contents less than 4 per cent and as such it was skimmed milk powder as per the Notification. Respondent No. 3 was of the view that powder milk and skimmed milk powder was one and the same thing and the same could not be imported by the petitioners against the initial licences under the Import Control Policy of 1977-78. The respondent No. 3 desired that clarification should be obtained from the Office of respondent No. 2. The petitioners thus wrote a letter dated 17-10-1978 to respondent No. 2 detailing the facts. It was also stated in the letter that vide Notification dated 12-8-1976 the Government had exempted the levy of customs duty on skimmed milk powder whereas customs on other milk powder is leviable @ 60 per cent. Ultimately, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Orders for such items according to their entitlement." 7.As per sub-para (e) direct import of canalised items were not allowed against transferred licences. He submitted that Section III of Vol. 1 of the Import Control Policy of the year 1977-78 contained the list of items whose import was canalised. Serial No. 6 thereof read as under : S. No. Canalising Agency Description of Item 6 Indian Diary Corporation Skimmed Milk Powder He also referred to Section I of the said Policy where there is mention of Milk Powder in Annexure-II to Part B of Vol. II of the Policy and the relevant entry reads as under : S. No. Description of Items Export Product against which import will be allowed 47 Milk Powder Biscuits (i) & Confectionery (S. Nos. G5 and G10) Instant foods (S. No. G13 ii) (ii) (iii) Milk Products (S. No. G 13 & G 21) Malted Milk food containing Cocoa (S. No. G. 24). (iv) 8.From the aforesaid two entries, Mr. Rawal tried to demonstrate that whereas item of skimmed milk powder found place in canalised items, milk powder was in general list from which it could clearly be inferred that two items were treated separately. He further submitted that si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B, the petitioner could not have imported this item. In order to avoid rigor of this provision, the petitioners were trying to allege that milk powder is different from skimmed milk powder where as it was not so, since milk powder was genus and skimmed milk powder was only specie thereof. His submission was that a particular item can be in the list of actual user and sub-item thereof could be a canalised item and precisely that was done by putting skimmed milk powder in the list of canalised item and milk powder in the other list. He also referred to judgment of Supreme Court in the case of The Mineral Development Ltd. v. The Union of India and another, AIR 1960 SC 1373. 12.In the case of State of Uttar Pradesh and another v. M/s. Kores (India) Ltd. (supra) the Court had to determine whether "carban paper" was same as "paper". The Court held that a word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs and in support of this proposition it relied upon judgments in the cases of Attorney General v. Winstanley, (1831) 2 Dow and Clark 302 : (1901) 6 and Grenfell v. Commissioners of Inland Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn differently and in the trade. In para 5 of this judgment the Court made the following remarks : "It was contended on behalf of the appellants that the essential question that we have to decide is whether the goods sold differed in identity from the goods purchase. It was urged that merely because paddy was dehusked and rice produced, there was no change in the identity of the goods. Identity of goods is one of the essential elements to be borne in mind in deciding the nature of the transaction. It was so decided in M/s. Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool [(1961) 2 SCR 14 = AIR 1961 SC 412]. In that case the question arising for decision was whether hydrogenated oil continued to be groundnut oil. This Court held that the hydrogenated groundnut oil continued to be groundnut oil. In arriving at that conclusion this Court look into consideration that the essential nature of the goods had not changed after the groundnut oil had been subjected to chemical process. Similar view was taken by this Court in State of Gujarat v. Sakarwala Brothers, (1967) 19 STC 24 (SC). Therein the question whether 'patasa, harda and alchidana' could be considered as 'sugar'. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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