1988 (5) TMI 194 - AT - Customs

Tribunal denies reference application, finding no new legal questions

MIRAH EXPORTS PVT. LTD. Versus COLLECTOR OF CUSTOMS

The Tribunal rejected the reference application, concluding that no question of law meriting reference arose from its order. The Tribunal emphasized that ... When Public Notice deemed to be having retrospective effect Issues Involved:1. Retrospective effect of Public Notice on import rights.2. Impact of Public Notice on imports under existing licenses.3. Determination of retrospective effect of Public Notice.4. Scope of transitional arrangements under para 231 (3) of AM-83 Policy.5. Vested rights of licensees under import policy.Issue-wise Detailed Analysis:1. Retrospective Effect of Public Notice on Import Rights:The applicants argued that a Public Notice cannot retrospectively take away the right to import vested in the licensee prior to its issuance. They cited several cases, including M/s. Bharat Barrel & Drum Mfg. Co. (P) Ltd. v. Collector of Customs, Bombay, to support their position. The Tribunal agreed in principle that retrospective effect could not be given to Public Notice 41/82. However, it found that the Collector (Appeals) did not apply the Public Notice retrospectively. The Tribunal also noted that this issue was not argued during the appeal hearing and referenced the case of P. Ripalkumar and Company, Bombay v. UOI, where the Bombay High Court held that imports must comply with both the earlier and current policies.2. Impact of Public Notice on Imports Under Existing Licenses:The Tribunal noted that this question did not arise from its order as it was not argued in the manner presented by the applicants. The Tribunal considered the timing of the opening of the Letter of Credit and the shipment, which occurred well after the issuance of Public Notice 41/82, indicating that the importers were aware of the canalisation.3. Determination of Retrospective Effect of Public Notice:The Tribunal concluded that the question of when a Public Notice can have retrospective effect did not arise from its order. The Tribunal had already determined that no retrospective effect was given to Public Notice 41/82. The Tribunal referenced the Supreme Court's ruling in I.T. Commr. v. S.S. Navigation Co. Ltd., which stated that a question of law not raised before or considered by the Tribunal does not arise from its order.4. Scope of Transitional Arrangements Under Para 231 (3) of AM-83 Policy:The applicants contended that para 231 (3) of AM-83 Policy should cover amendments made throughout the policy period. The Tribunal found that this question was not argued during the appeal and referenced the case of Mangla Bros v. Collector of Customs, distinguishing it on the facts. The Tribunal noted that the letter of credit and shipment occurred six months after the issuance of Public Notice 41/82, and the question did not arise from its order.5. Vested Rights of Licensees Under Import Policy:The applicants argued that a licensee had a vested right to import items as per the import policy in force at the time of the license issuance. The Tribunal found that this question was not argued during the appeal hearing. The Tribunal referenced the Supreme Court's decision in I.T. Commr. v. S.S. Navigation Co. Ltd., stating that a question of law not raised before or considered by the Tribunal does not arise from its order.Conclusion:The Tribunal rejected the reference application, concluding that no question of law meriting reference arose from its order. The Tribunal emphasized that the issues raised by the applicants were either not argued during the appeal hearing or were already settled by existing case law.