TMI Blog2000 (8) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... age of some of the components of the plant was in excess of seven years which was the maximum age permitted in paragraph 28 of the import policy in force for import of second hand goods. The plant was therefore seized by the customs department. 2.The importer thereafter approached the licensing authority and was able to persuade it to amend the import licence. Amendments were carried out twice. The first amendment made on 5-2-1992, provided that the licence would cover the import of goods more than seven years old, but restricted such permission only to machines which were already imported and were not under seizure by the Directorate of Revenue Intelligence. (We are not concerned with the second part of the amendment.) The second amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is fully within the parameters of the policy itself. The Bombay High Court in its judgment in Lokash Chemical Works v. M.S. Mehta, Collr. of Customs (Prev.), Bombay Ors. - 1981 (8) E.L.T. 235 has held that if the customs department did not honour import licence on the ground that they were contrary to the ruling would amount to the Customs House authority going into the areas of operation properly to be conducted by the licensing authority and said that even if import licence is granted in contravention of the directions contained in the Import (Control) Order, 1955, the importation cannot be invalid if the licence is not cancelled before such import is made. 5.The departmental representative emphasizes the reasoning in the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) of section 111 or so as to nullify action taken for illegal importation. He supports the reasoning of the Commissioner by reliance on the Supreme Court judgment in UOI v. Sampat Raj Dugal - 1992 (58) E.L.T. 163. He cites the judgment of die Bombay High Court in Stretch Fibre (India) Ltd. Ors. v. UOI Ors. - 1985 (21) E.L.T. 400 to say that the licensing authority cannot act arbitrarily without being guided by the policy. 6.The circumstances under which the licensing authority considered the request made by the importer for making the amendment, and did so by making the amendment the second of which directly contrary to the first was issued within ten days of the first, were not explained to us, nor are they perceivable from the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. for goods already arrived for shipping. The Tribunal in its judgment in Ester Industries Ltd. v. CC, New Delhi - 1995 (75) E.L.T. 635 has accepted the valuation on an amendment made to an import licence which has retrospective application. 8.Nor is it possible for us to accept the reasoning of the Commissioner that because cancellation of licence only operates from the date of cancellation it must necessarily follow the amendment to a licence must only be operative from the date of that amendment. The Supreme Court in its judgment in East India Commercial Corporation - 1983 (13) E.L.T. 1342 (S.C.) = 1963 (3) SCR 338 taken the view, later affirmed in its judgment in UOI v. Sampat Raj Dugal that applying the same principles of contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refuse to intimate the authority of import licence was any of the condition thereon. The licence has been granted by the authority who has jurisdiction to do so. It is not open to the department not to accept it on its perception that the licence was not issued in accordance with the policy. The observation of the Bombay High Court in Lokash Chemical Works v. CC, Prev. making a distinction between the function of the licensing authority and the customs authority and emphasizing that one cannot trespass upon the area occupied by the other are relevant. It is relevant to note here the amendment to licence was made nine months before issue of the notice to show cause 28-11-1994 and therefore could not have said to confirm the exercise of discr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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