TMI Blog2000 (9) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... the Singapore sellers. At the time when the contracts were enterted into sometime in July, 1999, the position was reported to be that DEHYDRATED GARLIC POWDER, FRESH GARLIC and DRIED GARLIC were importable freely, in the sense they were coming under OGL category. This is clear from the policy provisions contained in page 55 of the paper book in Appeal No. C-260-R/2000 which reads as under : Item 64 07129002 DEHYDRATED GARLIC POWDER Item 65 07129003 DEHYDRATED GARLIC FLAKES Item 66 07129004 DRIED GARLIC The DGFT authorities subsequently sometime in 17th September, 1999 have examined the matter by going into the question and have issued a clarification by their Policy Circular No. 32 (RE-99)/2000 of even date clarifying that "DRIED GARLIC" classified under EXIM code No. 071290.04 of ITC (HS) Classification, (97-02) would be treated as DRIED GARLIC provided the moisture content thereof does not exceed 10% irrespective of the method of drying. This policy circular was signed by one Dr. Smt. Pratima Dixit, Joint Director General of Foreign Trade with the approval of Director of General of Foreign Trade. On the basis of this circular, the customs authorities objected to the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urported to change or imposed certain conditions in respect of the DRIED GARLIC by fixing moisture contents at a certain percentage after the shipment. It is further contended by the appellants that the proposed action of the DGFT is not warranted by law and the Customs authorities trying to follow certain purported clarification given by the DGFT authorities was illegally wrong in applying the said classification in respect of the import of the goods. It is further contended that the Customs authorities were wrong in putting the cases under clause (d) of Section 111 of the Customs Act, 1962. It is argued by the appellants further that the goods were always traded in a normal commercial international transactions as a DRIED GARLIC and it is emphasised that what is treated as a DRIED GARLIC in the trade parlance should be accepted. It was never in the contemplation of the parties that the moisture contents would be relevant for parties of categorising or classifying their goods viz. DRIED GARLIC. This product under the category of DRIED GARLIC coming within the Tariff Entry 0712.90. Even HSN notes under the said chapter heading does not provide for moisture content as one of the cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was only clarifies the position. It is argued that if the designated authority which had notified the policy had made the clarification then the picture may be treated in a different way and favour to the Government. Here the policy which is not amended in terms of Section 5 of the Foreign Trade and Development Act, 1992 could not be applied in the manner prejudicial to the interest of the appellants. It is argued forcefully that the clarification could not have affected on the imported goods. It was further emphasised that certain pamphlets have been produced to Holster their case. One such pamphlet is "EU QUALITY STANDARDS FOR FRESH FRUITS AND VEGETABLES under the Europe regulations. Definition of produce have been mentioned under the "common quality standard for garlic regulation" 228897 under that certain definitions have been mentioned regarding dried garlic, semi dried garlic and green garlic. We do not find any moisture contents referred to therein. It is reproduce below :- DEFINITION OF PRODUCE "This standard applies to garlic of varieties (cultivars) grown from Allium Sativum L. to be supplied fresh (1), semi-dry (2) or dry (3) to the consumer, green garlic with full l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 6 of the Act provides for appointment of a person to be DGFT for purpose of the Act and for advising the Central Government in the formulation of the Export and Import Policy and he shall be responsible for carrying out that policy. The relevant policy in para 4.13 thereof which reads are as under :- "If any question or doubt are arises in respect of the interpretation of any provision content in this policy or regarding the classification of any item in the book titled ITC (HS) Classification of Export and Import Items", the said question or doubt shall be referred to the Director General of Foreign Trade whose decision thereon shall be final and binding." If any question or doubt arises whether a licence has been issued in accordance with this policy or if any question or doubt arises touching upon the scope and content of licence, the same shall be referred to the Director General of Foreign Trade whose decision thereon shall be final and binding." From the above it will be clear that the interpretation could be given by DGFT whose decision shall be finalised and binding only if any question or doubt arises hence, if we see the policy provisions it says only after any qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can not be any violation of Section 111(d) of the Customs Act, 1962. 8.The FRESH GARLIC, it may be clarified under that they come under fall under 0703.20 garlic is a restricted item in terms of policy. Here DRIED GARLIC has been treated as 0701.90. Therefore equating the present goods as a fresh garlic is wrong in law. The decisions cited by the appellants viz. (i) Enterprise International Ltd. v. Collector of Customs. [1994 (69) E.L.T. 453 (Cal.)] (ii) ITC Ltd. v. CCE (Appeals), Madras [1994 (69) E.L.T. 458 (Mad.)] (iii) State of Mizoram v. Biakchhawna [1995 (1) SCC 156.] (iv) CC, Bombay v. East Punjab Traders [1997 (89) E.L.T. 11 (S.C.)] [Para 7] (v) Chandra Kishore Jha v. Mahavir Prasad [1999 (8) SCC 266] before us are not at all relevant for purpose of this case and we find that on other grounds the appellants have made a good case. We are therefore of the view that the action of the DGFT authorities, introducing the certain conditions in respect of the DRIED GARLIC by means of a moisture content putting in a delightfully vague way is absolutely wrong in law. Even the ISI specification submitted by the ld. DR refers to only DEH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dried vegetables, dried by any process which would include process of sun drying as in their OGL, would be classifiable under 0712, if the normal natural moisture content of such vegetable including garlic has been reduced up to almost zero by dehydrating them. Thus if the subject vegetable is known and understood in commercial parlance as a dried vegetable, it would not be fresh vegetable classifiable under 0703.20. Even though garlic is specifically mentioned under 0703, by reading the heading notes of the HSN under 0703, and 0712, it would be apparent that when the item is not understood as green garlic or/and fresh garlic it is treated as dried garlic then it will not be classified under 0703 but would be classified under 0712. (b) The Policy Circular clarification dated 17-9-1999 has been commented by my ld. Brother and to which I agree. By a Policy Circular, by invoking the interpretation powers under para 4.13 of the Policy an amendment to the HSN heading notes cannot be introduced. I see, this Policy circular to be doing the same in a delightfully vague manner and therefore I do not find this clarification to be applicable at all. It does not set the unit paramete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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