2003 (1) TMI 108 - SC - Customs

Supreme Court upholds Customs decision on beef tallow import, clarifies penalty vs. confiscation.

COLLECTOR OF CUSTOMS, BOMBAY Versus ELEPHANTA OIL AND INDUSTRIES LTD.

The Supreme Court upheld the Collector of Customs' decision to confiscate imported beef tallow and impose a penalty under Section 112 of the Customs Act. ... Whether import of Beef Tallow under Open General Licence (hereinafter referred to as 'OGL') was permissible after issue of Import Trade Control Public Notice No. 29-ITC (PN/81) on 5th June, 1981 clarifying that existing description 'Mutton Tallow' in Entry No. 44 shall be read as 'Tallow of any animal origin including Mutton Tallow'? Held that:- In the Import Policy for April 1981-March 1982 in Paragraph 2, it has been specifically stated that 'any amendment to this policy which may become necessary in the course of the year will be notified by means of Public Notices issued by the Chief Controller of Imports and Exports, from time to time'. Same thing is stated in Import-Export Policy of the year 1982-83. In this view of the matter, it is apparent that respondent knowing fully well the import policy imported prohibited goods i.e. import of canalised item namely beef tallow and, therefore, the Collector was fully justified in imposing the penalty under Section 112 of the Customs Act. Appeal allowed. The judgment and order passed by the Collector of Customs is restored. Issues involved:Whether import of Beef Tallow under Open General Licence was permissible after the issuance of Import Trade Control Public Notice No. 29-ITC (PN/81) clarifying the existing description under Entry No. 44.Analysis:The case involved a dispute regarding the import of Beef Tallow under Open General Licence (OGL) after the issuance of a public notice clarifying the description under Entry No. 44. The respondent imported the item against a license issued in 1981, which was an impress license. The respondent entered into a contract for import, which faced challenges, leading to legal proceedings. The Collector of Customs passed an order confiscating the imported beef tallow and imposing a penalty of Rs. 5 crores under the Customs Act. The respondents appealed to the Customs Excise and Gold (Control) Appellate Tribunal, which allowed the appeal, stating that the import of beef tallow under OGL was not unlawful. The Tribunal's decision was challenged in the Supreme Court.The Supreme Court analyzed the legal provisions related to confiscation and penalty under the Customs Act. It clarified that the power to levy a penalty for improper importation is different from the power of confiscation of goods. The Court highlighted the sections of the Customs Act that deal with penalty and confiscation, emphasizing that both operate in different fields and are distinct powers of the authority.The Court also examined the settled legal principles regarding canalized items and import policies. It referred to previous judgments that established the requirement for imported goods to conform to the import policy prevailing at the time of import. The Court cited specific cases to support the principle that import of canalized items must comply with the Import Policy in force at the time of importation.Moreover, the Court addressed the respondent's argument that there was no bar on the import of beef tallow. It emphasized that once goods are canalized, holders of relevant licenses cannot import canalized items against additional licenses. The Court cited previous cases to support this position and reiterated that import policies must be adhered to at the time of import.In conclusion, the Supreme Court upheld the Collector of Customs' decision to confiscate the imported beef tallow and impose a penalty under Section 112 of the Customs Act. The Court set aside the Tribunal's decision and restored the Collector's judgment. The appeal was allowed with no order as to costs.