TMI Blog2004 (3) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... various quantities of 'dried garlic' and sought Clearance under ITC (HS) Heading 071290.04 and Customs Tariff Heading 0712.90 under Bills of Entry filed on different dates before 17-9-99, the date of Policy Circular No. 32 (RE-99)/1999-2000 issued by DGFT regarding ITC (HS) classification of 'dried garlic'. The garlic imported by all the appellants had a water content of above 10%/WW. Relying on the Circular, dated 17-9-99 issued by the Joint Director with the approval of the Director General of Foreign Trade, the adjudicating authorities took the view that the garlic imported are not dried garlic. The circular reads as follows :- "It is hereby clarified that 'Dried Garlic' classified under EXIM Code No. 071290.04 of ITC (HS) Classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had occasion to consider the power of DGFT in the matter of issuing of the circulars. It was held that circulars and public notice issued by DGFT prohibiting duty free import of natural rubber under advance licence would amount to amendment to the Policy, that power to amend policy being within the exclusive domain of the Central Government. The said powers cannot be usurped by the DGFT in the guise of laying down regulatory measures. In the present cases the contention taken by the appellants is that in the guise of clarificatory Circular the DGFT has in effect brought an amendment to the policy by introducing a condition regarding the percentage of water content for qualifying import 'dried garlic' without licence. We do not think ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 Entry (vi) of Col. 4 of Appendix 17 was changed, in that it was mentioned lining and inter-lining materials of width not exceeding 87.5 cm excluding nylon taffeta coated fabrics (10%). The Collector of Customs took the view that the Export Policy April, 1982 - March, 1983 must also be read as limiting the width to 87.5 cm as the amendment is clarificatory in nature and therefore has retrospective effect. This Tribunal took the view that no retrospective effect could be given to the amendment for the reason that it would render previous imports illegal entailing penal consequences on the importers. 5. The above decision of the Tribunal was approved by the Hon'ble Supreme Court in Collector of Customs v. East Punjab Traders - 1997 (89) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from 25% to 10%. We are not concerned with the latter. The Collector of Customs relied on this change and concluded that it was only clarificatory in nature and, therefore, the Entry (vi) in Column 4 of the Appendix 17 of the Import Export Policy April, 1982 - March, 1983 must also be read as limiting the width to 87½ cms. (approximately 35 inches). The consequence of the interpretation would lead to certain penal liabilities in regard to payment of penalty, etc. and, therefore, we find it difficult to hold that this Entry prescribing the limit of the width has to be read retrospectively. The majority was clearly of the opinion that such an interpretation would lead to unforeseen consequences so far as the importers are concerned and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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