TaxTMI 
TaxTMI 
1984 (12) TMI 184
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....r, an option to the petitioner to redeem the goods on payment of a fine of Rs. two crores in terms of Section 125 of the Customs Act. 2. Section 11 of the Customs Act, 1962 empowers the Central Government that if may by Notification in the official gazette prohibit either absolutely or subject to such conditions as may be specified the import or export of goods of any specified description. Section 111(d) of the Customs Act says that any goods which are imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation. Section 112 provides penalty for importation of goods which are liable to confiscation and says that such a person shall be liable also to a penalty not exceeding five times the value of goods or Rs. 1000/- whichever is greater. Sec. 125 permits the officer ordering confiscation to give to the owner of goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Sec. 12(1) of the Customs Act lays down that duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act. Sec. 2 of the Customs Tariff Act lays down the rates a....
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.... revalidated subsequently). 7. Appendix 9 Para 5 (April 1980-March, 1981) provides that in the case of the various Items mentioned therein import will be made only by the State Trading Corporation of India on the basis of foreign exchange released by the Government in its favour. The Items mentioned therein are : - 1. Coconut oil. 2. Copra. 3. Groundnut oil/seeds. 4. Palm oil (all types including palm ole in) 5. Rapeseed oil/seeds. 6. Safflower oil/seeds. 7. Soyabean oil/seeds and 8. Sunflower oil/seeds. Appendix 10 to the said policy enumerates the Items allowed to be imported by the actual users (industrial) under the Open General Licence (OGL) and the conditions mentioned therein. 8. Item No. 1 reads; Raw material, components and consumables (non-iron and steel Items) other than these included in the Appendix 9. 9. The petitioner helds a letter of authority from an export house. The export houses are entitled to additional licences in terms as mentioned in Para 177 of the Import Policy. In terms of Para 177(5) of the Import Policy the additional licence will also be valid for import of raw material components and spares (excludi....
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....1982-83 both edible and non-edible variety of coconut oil were canalised Items and could only be imported by the STC. 3. Was the Order of Collector passed under extraneous influence and at the instigation of an outside authority? 4. Was the Collector bound to decide in accordance with the order of the Central Government dated 31st March, 1981, if so can the petitioner insist on writ of mandamus being issued compelling the Collector to apply the law laid down by the Central Government even if this Court holds a view contrary to the view taken by the Central Government. In this connection would not the objection of alternative remedy be a total bar to the seeking of this remedy of mandamus or Certiorari? 5. Is the petition not maintainable on the ground of alternative remedy and lack of territorial jurisdiction? 16.  Now 'coconut oil' does not as such find mention in the Schedule to the Customs Tariff act or in Schedule 1 to the Import Control Order. But it is not disputed that coconut oil is covered by Entry 15.07 of Schedule to Customs Tariff Act and schedule to the Import Control Order. In Import Policy 1980-81 Appendix 9 Para 5 the Items which can be imported ....
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....al while charcoal is manufactured by human agency by products like wood and other things but it cautioned that in interpreting Item in a statute like Sale Tax Act resort should be bad not to the scientific or technical meaning of such terms but to their popular meaning or the meaning attached to it by those dealing in them. It then went on to observe :- "Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal." 19. Dunlop India Ltd. v. Union of India and others - 1983 E.L.T. 1566 (AIR 1977 SC 597) to which reference was made by Counsel for the petitioner is of no avail. There the goods imported was V.P. Latex by the appellant who were manufacturer of automotive tyres. The Central Government held that the V.P. Latex was synthetic resin and was to be classified accordingl....
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....g to find the meaning as ordinarily understood, I am not able to appreciate by what logic is the word coconut oil mentioned in the import policy being sought to be restricted to merely edible variety of coconut oil. 24. Reference to H.R. Syiem v. P.S. Lulla (LXXII 1969 Bombay Law Reporter 534) is a case in which it was held that 'black Insulating Tapes' which are included in 'electric insulation's' in column 2 of Entry No. 38 cannot be held to be adhesive tape in column 6 of the same Entry by the mere fact that they have adhesive capacity .not withstanding that the use of the said tape was for electrical insulation. It would be seen that the use of the electric insulation tape was taken to be the determining factor for giving a meaning to the word. In State of U.P. and others v. M/s. Indian Hume Pipe Co. Ltd. (AIR 1977 SC 112) the question raised was whether "Hume pipes" amount to sanitary fittings. The Supreme Court held that sanitary fittings would only be such as pipes or materials as are used in lavatories, urinales, or bath rooms of private houses or public buildings. It, however, accepted that even where hume pipe is used for carrying the excreted material from the co....
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....f coconut oil. In the trade circles coconut oil when used also is meant to include both edible and industrial variety. Thus Para 0.2 of the Indian Standard Specifications for Coconut Oil (Second Revision) shows the use of coconut oil both for edible and non-edible purpose, like in the manufacture of cosmetics, toilets. "The requirements for various Grades are suitable for the foregoing purposes". Para 1.1 prescribes the standard which is the requirement for test of coconut oil used for edible and industrial purposes. Types and Grades are mentioned and shows refined Grade and raw Grade IA and IB are suitable for direct edible consumption while raw Grade 2 and other two Grades are suitable for industrial uses and not for direct edible consumption. Thus as per specification "coconut oil" standing by itself would include both edible and industrial variety of coconut oil. The" specifications by Indian Standard Institution has been accepted as furnishing very strong and uncontrovertibly support as to how an article is known to the consumers and commercial community (See Union of India and another v. Delhi Cloth and General Mills Co. Ltd. 1977 E.L.T. 199 (S.C.) = 1963 SC 791 Para 10). ....
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....of the petitioners defence, that 'industrial coconut oil' is not under our preview and is not canalised with us. 28. From this it is argued by Mr. Sen that the STC is a very big trader and as it has stated that the industrial coconut oil was not canalised with it, it must be accepted that the word "coconut oil" in 1980-81 Import Policy was restricted only to the edible variety. I do not agree. No importance can be attached to a suggestion in this letter that industrial coconut oil is not canalised with STC for more than one weighty reason. The authority of Chief Marketing Manager to speak for STC in an authoritative manner is not shown. Moreover, STC is not the authority at all for giving any interpretation about what Items are canalised. Thus in Chapter 20 of Import Policy 1980-81 dealing with classification and interpretation of the policy Para 202 specifically provides that in all other matters relating to actual users enquiries emanating from other persons i.e. Export Houses, selling agents, traders etc. as well as interpretation of the policy proper and the procedure, the person concerned may address the Chief Controller of Imports and Exports for necessary advice. Any....
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.... would indicate that it is the edible variety which alone was canalised. In my view the Central Government by invoking this reason has clearly mis-directed itself. The Entry in Appendix 9 describes palm oil (of all types including Palm oilene and Palm Stearin) because there are various kinds of Palm oils some of which are likely to be mis-understood as not being included in the general Item. Palm oil e.g. Palm oilene is product resulting from breaking up the Palm oil. Palm oil is refined. The liquid operation after refining is palm oilene, while the solid part is palm stearin. In that view it was evidently necessary to mention that the palm oilene will also be included in Entry palm oil. That Palm oilene and palm stearin are different commodities has been up-held by a special board of Central Customs dated 28-5-1982 wherein it noted that the Central Government had also held that Palm oilene had to be considered different from palm oil and it was for this reason that it was found necessary to qualify the Entry of palm oil by specifying of all types including palm oilene. The same situation does not apply to coconut oil because it is the same name, only the purpose is edible or indus....
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....st always be restricted to the edible variety. Such a strange and involved logic is difficult to appreciate. If this very Entry of coconut oil is accepted to include both edible and industrial variety it is not understandable by what process of reasoning the same Entry to be found in the Import Policy 1980-81 is sought to be restricted to only the edible variety. The argument of the petitioner has no force. Another argument in support of this contention was by relying on Import Policy for 1981-82, 1982-83, whereby the Entry in Appendix 9 Para 5 was to the effect 'In the case of the following Items, whether edible or non-edible, import will be made only by the State Trading Corporation ...... (i) coconut oil', The Suggestion of Mr. Sen and Mr. Rana is that because the word 'whether edible or non-edible' are not to be found in the earlier policy of 1980-81 it necessarily means that the word 'coconut oil' used in 1980-81 policy was restricted only to edible variety. I cannot agree. It is equally possible to say that as edible has been specifically mentioned in 1981-82 policy, the earlier Entry of 1980-81, was restricted to non-edible variety only. So this argument of seeking to exclud....
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....poses. Thus in 1979-80 all oils including coconut oil whether of industrial or edible variety were canalised Items through S.T.C. Appendix 10 which dealt with import of Items under OGL had no Entry of oils at all. Entry No. 1 Appendix 10 was broadly similar as was to be found in the import policy of 1980-81 namely raw-materials, components other than those included in the Appendices 3, 5, 8 and 9. It is clear thus that under 1979-80 policy coconut oil even for industrial purposes could not have been imported under Appendix 10 because the history of coconut oil shows that it was a canalised Item both for edible as well as industrial purpose right from 1978-79 policy and it also figure as such amongst the canalised Items in 1979-80. Sunflower oil and copra which in 1978-79 had been divided into industrial and edible purposes by being mentioned specifically in Appendices 8 and 10 respectively had ceased to be so included separately and were now included amongst the canalised Items in Appendix 8. It is significant to note that deordarised palm oil is excluded from Entry 51 in Appendix 8 (1978-79) of industrial purpose evidently because deordarised palm oil is for edible purposes and in....
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....ng 1980-81 large imports of non-edible oil had been made by the private parties. 34. In the case of the another concern, the Collector had rejected the plea of the petitioner that coconut oil of industrial variety was outside the preview of canalisation and had imposed a penalty of Rs. 25 lakhs. The Central Board had, however, taken a different view by its order of 23rd January, 1981 and had set aside the order and held that coconut oil of industrial variety was not canalised through STC. The Central Government has noted in its order dated 31st March, 1981 that the Joint Chief Controller of Imports and Exports in the office of Chief Controller of Imports and Exports in his letter of 28th February, 1981 addressed to the Director of Customs, had pointed out that the information given by his letter of industrial crude coconut oil was not canalised was not correct. Thus as a doubt had been cast and more so in view of the decision of the Central Board dated 23rd January, 1981, the Government naturally thought it proper to remove any doubt and ..... to clarify that coconut oil always meant to include both edible and industrial variety and that is why it out of abandant caution cl....
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....ndia had suggested the alternative, that even if it is held that in 1980-81 Import Policy industrial 'coconut oil' was not covered by Appendix 9 Para 5, the same could not have been imported by the petitioner in July/September, 1982 because it is common case that from 1981-82 onwards Appendix 9, Para 5 covers 'coconut oil' whether of edible or industrial variety. 37. The petitioner is a holder of a letter of authority in respect of the licences on which the coconut oil has been imported. The licences were issued to certain export houses. They were originally issued on 4th November, 1980, 23rd January, 1981 and 15th January, 1981. The petitioner was appointed the letter of authority holder of the said licences by the authorisation letter of 24th February, 1981, 14th February, 1981 and 18th December, 1981. The licences were issued to the Export Houses. All the licences have an endorsement namely licensing period AM-1981. These licences have a further endorsement on the face of the licence to the following effect : "This licence is granted under the Government of India order dated 17.9.1975 as subsequently amended issued under the Import and Export Act, 1947 and is without ....
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....prohibition regarding the importation of goods (namely coconut oil) at the time of their arrival, as specifically provided by endorsement in terms of the issue of licence. This licence was valid for import of goods if they were not prohibited at the time of their arrival. The petitioner cannot rely for import of coconut oil on a licence which prohibits the particular Item of goods. The effect of this endorsement is to make it as if there is no licence for the import of coconut oil in September, 1982. It is not as if the petitioner could import coconut oil in September, 1982 but subject to certain conditions in fact he had no licence to import coconut oil at all when the goods arrived. It would be a case of import without any licence. 40. The same result follows from a perusal of Open General Licence No. 1/80, 1/81, 1/82, issued in April, 1980, 1981 and 1982 issued by the Central Government in exercise of the powers conferred by Section 3 of Imports & Exports (Control) Act, 1947, by which it gave general permission to import into India from any country raw material, components, consumables by actual users (Industrial), subject - amongst others to the following conditions : ....
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....ch Item can be imported is an effort at splitting up the object of OGL order without any justification. When OGL order gives a general permission to import some Items it gives it subject to certain restrictions. Petitioner cannot ask for the benefit of OGL order to import certain Items but claim to be free from the fetters laid down in that very order. Rights under Para 177(5) to import kind of goods must be under the same constraint as that of an actual user (industrial). As the actual user (Industrial) itself could not import the coconut oil even of industrial variety from 1981-82 onwards because of the prohibition under OGL order issued under Section 3 of the Import and Exports Act, the petitioner as a holder of the additional licence could stand on no higher footing. 41. It was sought to be urged that the OGL order is merely a general permission but is not a prohibition. I cannot agree. Section 3 of the Import and Exports Act empower the Central Government to prohibit or restrict imports. An OGL order passed under the said Section by which it gives general permission to import certain Items but subject to certain conditions in effect prohibits the imports of these Items....
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.... claim any vested right to compel the Government or the legislatui" to refrain from making any changes during the financial year. (para 270). "Policies of imports or exports are fashioned not only with reference to internal or international trade but also on monetary policy, the development of agriculture and industries and even on the political policies of the country but rival theories and views may be held on such policies. If the Government decides an economic policy that import or export should be by a selected channel or through selected agencies the court would proceed on the assumption that the decision is in the interest of the general public unless the contrary is shown.." (See 1973 SC 2711 & 2716). The same view against holding of any vested right in the importer or invoking the plea of promissory estoppel has been accepted in Full Bench of this Court in Bansal Exports (P) Ltd. & Others v. Union of India & Others, 1983 Delhi 445 (Pr. 8, 10). Reference may with advantage be made to The Deputy Assistant Iron and Steel Controller, Madras and another v. L. Manickchand Proprietor, Katralla Metal Corporation, Madras 1972 SC 935. In that case appellant applied in 1968 for....
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.... may not be able to import some goods, or it may be that the list has increased by inclusion in later Import Policy of 1981-82. The significance is that goods if not imported under licence under 1980-81 policy can only be imported if they are permitted under 1981-82 policy. If the main licence cannot authorise import of Items not included in Appendix 5 and 7 of 1981-82 policy, even if they were included in 1980-81 policy, by what logic can coconut oil even if read with Para 177(5) and Appendix 10 Item No. 1 of 1980-81 policy be imported in September, 1982 when from 1981-82 policy onward it had been included as a canalised Item. Consistency demands that Item must be importable at the time of arrival - not that they were importable in the previous policy. Export houses are not to be given a bonanza by being permitted to import Items which is prohibited to Actual Users (Industrial) for whose benefit the whole exercise of importation is done. 44. It will thus be clear that industrial coconut oil could not have been imported in September, 1982 even though it was in pursuance of a revalidated licence issued during 1980-81 because of the prohibition provided in the OGL order of 19....
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....arly, in 1971 SC 170 (supra) a licence was granted to import certain machinery for a maximum CIF value of Rs. 45,000/-. Later on, it transpired that the value of the machinery imported was Rs. 45,179/-. On that ground the authorities wanted to confiscate the goods. The court held that even if it was a breach of the condition of licence it was open to the authorities to direct prosecution but no order for confiscation of goods could be made. These cases are clearly distinguishable. In the present case even if we ignore the violation of Para 185(3) of policy, the petitioner would still have defaulted in terms of Condition No. 18 of OGL order of 3.4.1981, 1982 and an irrevocable letter of credit to have been opened in February, 1982, because the goods i.e. industrial coconut oil was imported in September, 1982 and letter of credit opened in July, 1982. The present is not a case where the import of coconut oil could be validly imported in September, 1982 but certain conditions had been imposed for the import and these conditions had been breached, like in the above Supreme Court decisions, which have no applicability. The present is a case where import of coconut oil of all variety is ....
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....On 11th October, 1982 Mr. L. Prashad, Deputy Chief Controller for Exports, on behalf of Chief Controller of Imports/Exports sent a copy of Mr. Takhat Ram's letter dated 4th September, 1982 (which had obviously not been sent to Collector, Ahmedabad) and also stating that clearance of imports made by the petitioner should not be made without getting prior clearance from the office of Chief Controller of Imports and Exports. Obviously in pursuance of these queries one Mr. Nagpal, Director of Customs, Ministry of Finance & Customs by his letter Sated 25th October, 1982 wrote to Mr. Takhat Ram pointing out that it was not very clear whether the import by the petitioner would be covered by revalidated Additional licence and asking that matter be treated as most urgent as the goods had arrived at Kanda and were awaiting clearance. It is in this background that it is urged that the impugned order of the Collector must have been passed on the direction of Mr. Takhat Ram without applying his own mind. In support of the supposed influence of Mr. Takhat Ram reference is also made to the fact that the impugned order of the Collector dated 17th December, 1982 was also endorsed to Mr. Takhat Ram,....
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.... motive can be attributed to the Collector simply because he gave a decision adverse, to the petitioners. It is correct that the Collector's order unfortunately in the discussion makes no reference to the order of the Central Government dated 31st March, 1981. But it is significant to note that the Collector does notice the order of the Central Board dated 23rd January, 1981, the very order which was affirmed by the Central Government on 31st March, 1981. No oblique motive can be attributed on this account. There was no intention to ignore a contrary decision because in terms of hierarchy the Collector is as much a subordinate authority to the Central Board as to that Central Government. For the reasons that the Collector could and did not follow the view of the Central Board were equally valid for not following the decision of the Central Government, as it had only affirmed the Board's view. No advantage was gained by the Collector by the inadvertent omission to mention Central Government's order. Mr. Rana still insists that these facts are sufficient to prove that the Collector's order is motivated. He says that in matters of malafide acts of public officials, onus of proof of ma....
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....given by the highest revisional authority - under the Customs Act must continue to govern a decision on the same point even in the case of another party or for different period. It is relevant to note that the view of the Central Government in its order dated 31st March, 1981 was not taken in the case of the present petitioners. Their case relate to another party. So that even technically speaking res judicata as such cannot apply because the parties are different. That is why emphasis was on estoppel by urging that the Collector is estopped from taking a view contrary to that taken by the Central Government. This argument which seeks to apply the principle of estoppel in revenue matters runs counter to the well established principles of law that there is no estoppel in the matter of tax laws which would also include proceedings under the Excise and Customs Act. In Palkiwala Law and Practice of Income Tax 7th Edition at Page 854 & 855, a series of decision have been summarised, the purport of which is: (a) that the doctrine of res judicata or estoppel by record does not apply to the decision of assessing officer; (b) a finding or decision by income tax in one year may be depa....
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....he earlier assessment in revision, which was accepted by Central Government and it was held therein that the woollen carpets manufactured by the plaintiff were not excisable goods. Naturally the plaintiff became entitled to the refund of the amount paid by him. The Assistant Collector, however, refused it on the ground that the revision petition though accepted on 14-4-72, related only for the period upto March, 1968 itself. It was then the plaintiff filed a suit for the recovery of that amount which was decreed, in view of the fact that the Central Government had held that goods manufactured by the plaintiff, were not excisable. In my view the case was decided on its own facts and should not be held to be laying any broader view of applicability of estoppel in revenue matters, which If it did, with respect would have to be held to be erroneous view of law. Bharat Carpets case was noticed in J.K. Synthetics Ltd. & another v. Union of India & Others, 1981 E.L.T. 328, and it was commented that the contention on its basis runs contrary to the well established principle of law that the doctrine of res judicata or estoppel cannot apply in matters of this kind. Though the Bench held in t....
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....m Chand Jain v. State of Bihar 1976 SC 1433 is also distinguishable. In that case the petitioner applied for a mining lease. The State Government passed no order on it and in revision the Central Government directed the State Government to decide the matter by 30-9-62. Inspite of this the State Government failed to pass any order. In second revision the Central Government by its order. 21-11-64 directed the State Government to grant the mining lease. Inspite of this specific directed the State Government rejected the application by its order of 17-12-1966. Third revision was filed before the Central Government on 27-1-1967. On receiving the comment of State Government the Central Government rejected the revision, against which the appellant went to the Supreme Court which held that in view of the earlier decision by the Central Government dated 21st November, 1964 the State Government was bound to give the mining lease and in view of the earlier order of the Central Government the State Government's action in refusing to carry it out could not have been uphold by the Central Government subsequently even when no new facts were given. No such eventuality arises here. There is no deci....
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....bilities can be satisfactorily quietened by what was said in Gaffoor's case (supra) to a similar complaint, namely : "It may be that the principles applied in these cases form a somewhat anomalous branch of the general law of estoppel per rem judicatam and are not easily derived from or transferred to other branches of litigation in which such estoppels have to be considered; but in their Lordships' opinion they are well established in their own field, and it is not by any means to be assumed that the result is one that should be regretted in the public interest." The contention to deny jurisdiction to the Collector to pass an independent order on its own must be rejected. I must also note that the Collector has given sufficient additional angle to justify consideration of the matter afresh, notwithstanding the earlier decision by the Central Government. 53. But even had I held that the Collector was bound by the decision of the Central Government dated 31st March, 1981, it could only have resulted in the matter being remitted to the Custom authorities for a fresh decision according to law, a course strongly opposed by Mr. Sen and Mr. Rana. Their plea was that if the ....
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....ect interpretation of the policy. Any other course can be only unjust and anomalous. More so and especially in view of the preliminary objection taken by the respondent that this petition should not be entertained because a perfectly good remedy of an alternative remedy of appeal being available to the petitioners. In the present case the decision of the Collector was given on 20th December, 1982. By that time the amendments made by Section 50 & 5th Schedule of the finance Act, No. 2/1930 providing for an Appellate Tribunal had come into force. The petitioner thus could have filed an appeal under Section 129A to the Appellate Tribunal, which would have been free either to agree with the reasoning of order of Central Government of 31st March, 1981; it could as well take a contrary view and affirm the Collector's order. It could not have been urged by the petitioner if he had filed an appeal that the Appellate Tribunal was bound by the earlier view of the Central Government dated 31st March, 1981 because being an independent quasi judicial body there was no compulsion on it to agree with the earlier view of Central Government. Even if the amendment Act had not come into force, the Ce....
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....) order having been passed by Collector, Ahemdanbad, which is outside the territorial jurisdiction of this Court. By Section 50 read with Fifth Schedule of Finance Act (No. 2) of 1980, 15 has been substituted in Customs Act 1962. It came into force with effect from 11-10-1982. Section 129 of Customs Act has constituted an Appellate Tribunal to be called the Customs Excise and Gold (Appellate Tribunal) Act. It is headed by a retired Judge of this Court. Section 129A provides for an appeal against a decision or order passed by the Collector of Customs. In the present case show cause was issued on 24-11-1982. As such appeal undoubtedly lay to the Appellate Tribunal - it is so even conceded by the petitioner. Section 130 also provides for a question of law to be referred to the High Court any question of law arising out of the order passed by Tribunal in appeal. Section 130E also provides for an appeal to the Supreme Court against any judgment of High Court delivered by a reference by it. Thus undoubtedly a regular appeal to an independence Tribunal being available the petitioner should be held incompetent for it is well settled : "It is well settled that when an alternative....
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....f 31.3.1981 is rather an argument against the petitioner. For it he feels that a higher authority has taken the view being propounded by the petitioner, it is best to approach that authority, of course, it will be open if it so feels, for that coordinate authority (now the Tribunal) to take a contrary view from that being urged by the petitioner. The petitioner thus by not going up in appeal, and at the same time urging, as noticed earlier that the Court should issue a writ quashing the proceeding initiated by the Collector on the sole ground of its decision being contrary to Central Government (without agreeing to examining the merits by us or either remitting it to Collector for reconsideration) is obviously taking the impermissible course of not availing a normal remedy of appeal and at the same time asking for quashing the proceeding without examination on merits at any forum. This portion itself shows how inequitable and improper has it been to entertain this petitioner direct. The decision of State of U.P. v. Mohd. Noon AIR 1958 SC 86, has no relevance. The petitioner was given full hearing. The argument that in the order of Collector reference is made to the meaning of cocon....
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....s, 1983 E.L.T. 292, Para 41). In the present case the challenge is only on merits and in the normal course I would have been inclined to reject this petition on this preliminary objection. 58. But on peculiar facts of this case I do not intend to do so. That is why I have gone into the merits of the whole matter and have given my findings accordingly. In this context I have kept in view the fact that the Division Bench entertained this petition in 1983 (after the Amendment Act had come into force) and did not dismiss it on that ground at that stage. Subsequently this matter was heard by learned Single Judge for days and the matter referred to a larger Bench. Earlier to the matter being heard by a Division Bench, the Supreme Court though in the first instance transferred the case to Rajasthan High Court for the expeditious hearing, stayed the order listed before Division Bench for regular hearing. Thereafter the Division Bench referred it to Full Bench. We heard the whole matter on merits as well. In that view it would serve no one's purpose if we were not to decide the whole matter but were to dismiss the writ petition on the ground of alternative remedy not having been ava....
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....tonne with the result that the equivalent value of the goods would be more than Rs. 5.7 crores and that the petitioner had made huge profit even after the payment of redemption fine. The petitioner, however, repudiated this assessment of value. According to them the market value at the relevant time was Rs. 14,500/- per M. Tonne. They also claim to have undergone huge storage charges, bank interest for a period of three months before the goods were got released. The petitioner claim to have sold these goods at that rate to M/s. Hindustan Lever etc. It is denied that the petitioners made huge profits. Counsel for the petitioner pressed us to consider various circumstances which according to him showed the bona fide belief of the petitioners that he was importing goods validly with a view to ultimately persuading us to hold that it was not necessary to order confiscation at all and that a mere warning or a token fine would have sufficed. Now I do not think that it is permissible for this court under Article 226 to interfere in the quantum of fine as this court is not sitting as a court of appeal. Even the Supreme Court in Indo China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. Co....
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.... will not ordinarily be imposed unless the party obliged/acted deliberately in definance of law or was quilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation and that the authority competent to impose the penalty will be justified in refusing to impose penalty when there is a technical or venial breach of the provisions of the Act. The Supreme Court held in these circumstances of the case that the company, a public sector organization acted in the honest belief that the company was not a dealer; hence no case for imposition of penalty was made out. That case has no relevant here where what is complained is the breach of prohibition to import Items in violation of the provisions of an economic legislation like the Customs Act. 62. In this connection one must make a distinction between proceedings for confiscation under Section 111(d) of the Act as in the present case and independent proceedings for penalty under Section 112 of the Act which have not been started against the petitioner. Question of bonafide belief and Mens Rea are irrelevant in proceedings under Section 111(d) of the Act, while they may have relevancy in proceedings for ....
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....ne can be permitted to make profits or take benefit by importing goods which are prohibited in the interest of national economy. No alleged rule of literal construction of a statute can be invoked for no citizen has a right to sabotage the national economy in enactments like the Foreign Exchange Act (Sikri, J. in The Union of India and Others v. M/s. Raj Bahadur Shreeram Durga Prasad (P) Ltd. and Others, 1970 SC 1597, Para 13) or for that matter on the same analogy under the Customs Act. 64. It is indisputable that the proper implementation of the Imports and Exports Act is of immense signification to the national economy. Any loose or half hearted opening which may permit the provision of the Act to be violated can spell disaster for national economy. In such sensitive and other similar legislations Parliament inevitably make the liability absolute, for not to do so would gravely harm public interest. Thus contravention of Hire Purchase and credit sale agreement was held to be an offence even though the act was innocently done. Donovan, J. put it succinctly, "There would be little point in enacting that no one should breach the defences against a flood and at the same time....
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....sp;I must, therefore, dispel the assumption that even if the goods, as in the present case, are found to have been imported, contrary to the prohibition under the law it is discretionary on the Collector to take any action or not. That is an impermissible suggestion. Liability for importing prohibited goods is absolute. On it being proved that the goods have been illegally imported an order of confiscation must be passed under Section 111(d) of the Act. It is only thereafter that Section 125 of the Act permits the Collector to give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. But this Section does not make it obligatory on the Customs authorities when ordering confiscation, to give an option to the owner to pay a fine in lieu of confiscation but give them a discretion whether to do so or not. The order of confiscation would not therefore, be bad even though it had not given the petitioner an option to pay a fine in lieu of confiscation. Section 167(8) of old Act corresponds to Section 111(d) of the Act while Section 183 of old Act corresponds to present Section 125 of the Act. The Supreme Court in F.N. Roy v. Collector....
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....y of imports, and exports at the whim of one Collector. Each importer has to meet a case put against him, he may invoke the material purporting to support him, but that is about all he cannot insist that the decision must not be of the Collector dealing with his case but of some other Collector of different Port. I may in this connection refer to Coromandel Fertilisers Ltd. v. Union of India and Others (A.I.R. 1984 S.C. 1772). In that case the plea of the writ petitioner was that in terms of the particular Notification issued by the Government of India the petitioner was entitled to claim exemption from the excise duty on the article manufactured by him which it was claimed was mixed fertilizer. The High Court however held that the petitioner was not manufacturing the mixed fertilizer and was not entitled to claim any exemption. The said finding was up-held in the Supreme Court. However during the course of the argument, an argument was raised that another rival company had been given the benefit of exemption Notification for manufacturing the very same article as was manufactured by the writ petitioner and therefore not to give the same benefit would work injustice. Repelling this....
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....in that the resort to Section 125 of the Act to impose fine in lieu of confiscation cannot be so exercised as to give a bonanza or profits for an illegal transaction of import. Some justification offered by importer may be taken into account for not proceeding for personal penalty under Section 112 of the Act or for not proceeding under Section 135 of the Act against the importer. But there would appear to be hardly any justification for letting an importer make monetary gain from any illegal transaction of imports and/or exports. Because if apparent justification pleaded for import, which ultimately is found to be prohibited it can still result in monetary gain to the importer, there may be serious danger and risk to the success of the whole import and export policy with inevitable adverse economic consequences for the nation. The Import and Export Policy can work in the Public interest if it was make known clearly that whatsoever justification are pleaded may be sometime reasonable or even well intentioned, it will be no avail, and will not result in any monetary gain to the importer, once the goods are found to have been imported against a prohibition under the Statute. The labe....
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....rd the matter for 14 days. After detailing several import questions arising in these petitions Anand J. observed : "These are some of the questions that arise in these petitions and were canvassed at the trial. These are important, as indeed, difficult questions. These are decisions either way on some of these questions, while some of them represent a grey area and different and even conflicting views may be likely." With these observations, the learned Judge referred the matter to Hon'ble the Chief Justice for constitution of a larger Bench. It would have been very helpful if Anand, J. was also with us, as he has passed a detailed referring order. Indeed, the statutory Rules and Orders of the Punjab High Court, Vol. V, as application to Delhi High Court, make the following provision in this regard. VOL.V-CHAPTER 3-B-PART B-JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT : "Rule 8: Judge or Judges who refer a case shall ordinarily sit on the Bench which considers the reference." "The Judge or Judges of a Bench by whom any question or case is referred shall ordinarily be members of the Division Bench or Full Bench, as the case may be, appointed to consider suc....
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.... 1980 M/s. Jain Shudh Vanaspati Limited, a sister concern of the petitioners, wanted to import industrial coconut oil. The oil was to be imported on the licences in favour of these petitioners. Thinking that under the import policy for A.M. 1980-81 S.T.C. might be an agency for its import, the said M/s. J.S.V. Limited placed a requisition for industrial coconut oil on the S.T.C. In the said letter of 25.10.1980 it was written "we wish to advise you that we are holding industrial licence for the manufacture of soap in our factory, situated at Ghaziabad. One of the raw materials which is required for the manufacture of soap in our factory is industrial coconut oil. Presently we are in need of about 100 M.T. of coconut oil and will appreciate in case you are kind enough to allocate 100 M.T. of industrial coconut oil in our favour. The S.T.C. replied as follows, on 30th October, 1980 :- "Subject: Import release of industrial coconut oil. We are in receipt of your letter dated 25.10.1980 in connection with your requirement of about 100 M.T. of Industrial Coconut oil for the manufacture of soap in your factory. In this connection we would like to inform you that S.T.C. is not im....
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....that it was not the intention of the Government to canalise import of industrial oil. In trade parlance coconut oil meant the edible coconut oil. Since the canalised agency is the S.T.C. they approached the S.T.C. to find out whether the industrial Grade of coconut oil was also canalised with them It was really a question of fact that they wanted to know from the S.T.C and not as a question of interpretation of policy. On these rival contention and, on the "careful" consideration, the Central Government held "the commodity coconut oil" as is commonly understood in common parlance or amongst the trading circles refers to the edible coconut oil. industrial Grade of coconut oil is an inferior type. If the industrial Grade of coconut oil is to be traded, it is described as industrial coconut oil. On the other hand, if the ordinary edible variety is traded, it is described as coconut oil." The Government in revision further held: "it is to be considered that when the question is as to what is canalised, there is no better source for getting the information than the canalising agency itself. In the case of a canalised Item, if one has to find out what it meant by the term coconut oil, no....
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.... period. But the Board observes that in this case the position is somewhat different in as much there has been numerous changes in the policy over a considerable period, sometime excluding a variety, another time including the same or other varieties, but all with a view directed towards regulating the flow of edible oil into the country. There is, therefore, a reasonable inference that the provisions in Appendix (9) are concerned with the edible variety of oil only" (emphasis supplied). The Board also held that so far as the decision of the Government of India on the classification of palmolein for custom purposes is concerned, there is no doubt that the decision is binding on the customs authorities. The intention of the Government to include palmolein palm seeds in the Entry "palm oil, all types" makes it clear that it was not the intention to include "palm stearin" in Appendix-9. The Board also held (on the basis of the evidence led before it) that there has been sufficient scope for confusion about the true meaning of the expression "palm oil, all types, including palmolein" and even the different Customs Houses were following different practices. On these grounds the Board he....
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....The Collector, therefore, requested the Director of Customs to take up "the question of "obtaining prior concurrence" from the Chief Controller of Imports and Exports direct. On this letter, the Director of Customs on 25.10.1982 wrote to Shri Takhat Ram, Joint Chief Controller of Imports and. Exports, New Delhi. He referred to the confidential D.O. letter dated 4.9.1982 issued by the said Joint Chief Controller of Imports and Exports. In the said letter he further wrote, "it is, therefore, not clear whether said import (of M/s. J. Exports (P) Ltd., New Delhi) would be covered by the re-validated additional licences produced by the importer who has contended that the import policy of 1980-81, against which these licences were issued would apply to these imports. A copy of the letter submitted by the importer explaining their view points is also enclosed. It is also not clear whether in revalidating the licences the fact that some of the Items like coconut oil etc. had since been canalised, have been taken into account. As the issue is not free from doubt and as your office has already advised the Customs Houses to furnish details as such import before Chief Controller of Imports and....
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....nd Exports who is the proper authority to enterpret import policy and the opinion of any other authority was not binding on him or in law. He held that the provisions of the said two Paras of the said Import Policy was a statutory provision. The letter of the S.T.C. "was not sustainable in the light of the law relating to the interpretation of statute cited above." The Collector then relied upon the Indian Standard Specification for a coconut oil, IInd revision, I.S.454-1968 and re-affirmed in 1976. The Collector further went on to say, that I.S. Specification was laid down by the Oil & Oil Seeds Sessional Committee comprised of eminent and therefore deserved acceptance. He relied upon AIR 1963 S.C. Page 791, 1980 E.L.T. 679 Delhi and 1980 E.L.T. 468 Madras. The Collector then held: "In view of the above, I am of the firm opinion that the word "coconut oil" was it appeared in AM 1980-81 import policy Appendix-9 Para 51 would cover refind industrial coconut oil whether it is edible to not". The Collector then stated that the import policy AM 1981-82 wherein edible and non-edible varieties were specifically canalised goes to prove that non-edible variety was canalised during 1980-....
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..... He, however, did not impose any personal fine. The Collector further held that if the importer exercised his option to redeem the goods on payment of fine imposed they could clear the goods on payment of duty at preferential rate applicable to goods of Sri Lanka origin. The Collector sent the copy of the order to Shri Takhat Ram, Joint Chief Controller of Imports and Exports, New Delhi. 85. To complete the narration, the petitioner paid the redemption fine and got the goods released. This he did during the pendency of the writ petition in this Court, as the stay was refused by this Court. The admitting Bench on 18th Jan., 1983 directed that the writ petition should be listed on 21st Feb., 1983 as No. 1 subject to part-heard. It is pointed out by the petitioner that on 12th Jan., 1983 i.e. after the import policy of 1982-83 was already announced, the Collector of Customs at Calcutta, allowed M/s. Jayant Oil Mills Pvt. Ltd., Bombay and Metro Exporters, Bombay to clear industrial coconut oil of 5000 M.T. each without any show cause notice or any punitive or penal action. This fact was not denied by the Counsel for the respondents during the hearing. II - Scope of enquiry ....
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....ns for doing so. I will deal with them at a later stage. 89. On merits several contentions were raised by the petitioner and by the respondents. I will first deal with those contentions of the petitioner, factual position of which, was not contested or even demurred by the Counsel for the respondents. Mr. Rana, Counsel for the petitioner has submitted that the Collector has committed a grave error of law in completely ignoring the order of the Central Government in revision passed on 31st of March, 1981 and also the order of the Special Bench of the Central Board of Excise dated 28th May, 1983. The error, according to the petition or, is an error of law, apparent on the face of the record and going to the root of the jurisdiction of the Collector to decide the matter. Before going into this submission we must examine the nature and the import of the said two orders. The order of the Central Government was passed under the old Section 131(3) of the Customs Act. This is a revisional power. The Central Government had a final power under the Act to examine legality, propriety and compliance of policy by all the customs authorities subordinate to it under the Act. The Act gives ....
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....oint Chief Controller, Exports and Imports, Shri Takhat Ram, who was not satisfied with the decision of the Board (holding that industrial coconut oil was not covered by Appendix-9 of the Customs Act) took up the matter with the Central Government. The Central Government in revision has noted all the contentions and objections of the Joint Controller of Imports and Exports. They were expressly over-ruled by the Central Government. Can it not be said that after such a full hearing and debate, of the point of view of Central Government, on policy, law and national interest in export and import, all doubts were set at rest? Strangely enough the Collector obediently followed the subsequent administrative instructions issued by the Joint Controller and passed an order contrary to superior Judicial Tribunals. What is true about the order of the Central Government is equally true about the order of the Special Bench of the Court. Why was the Special Board constituted? Because, there was a conflict of decisions amongst three different Collectors. The special Bench clarified the law and the policy. Constituting a larger Bench and a Special Bench is a well-known judicial method to creat cons....
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....ncipal of estoppel does not operate against the statute and hence has no application in taxation cases. On the other hand, within the broad framework of the Customs Act and statutory control orders, Government is free to lay down the export and import policy and benefits or burdens can be carried forward to subsequent years unless there is a legal bar. Import policy statements, published every year in the form of public notice, are non-statutory in character and are nothing more than administrative instructions. Case Law on Estoppel & Res Judicata 93. Even in tax matters principles of equity akin to estoppel and res judicata, are made applicable on the ground of natural justice, finality of decision, avoidable inconvenience and harassment to an assessee. In Sankaralinga Nader v. CIT (ILR 53 Madras 420), the Full Bench of the Madras High Court observed : "If fresh facts come to light which on an investigation would entitle the Income-tax Officer to come to a different conclusion from that of his predecessor we think he is entitled to reopen the question. But if there are no fresh facts it is difficult to see how he can arbitrarily go behind the facts of finding of his ....
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....ve. He has then adverted to the High Court decisions. After reviewing all the decisions, he has come to a conclusion that there is a distinct line of authority in India enunciating this limitation on departmental action in tax matters. J.K. Synthetics' case concerned with payment of Excise Duty. Ranganathan, J. has further held : "If the matter is looked at from this larger prospective, we think it will be clear that there can be only one answer to this question viz. that the department should not be permitted to take different stands unless there is any good or cogent reason for the change in view. For example, if the facts are different or if further and fresh facts are brought on record or if the process of manufacture has changed or if the relevant entries in the tariff have undergone a modification or if, subsequent to the earlier decision there has been the pronouncement of a High Court or the Supreme Court which necessitates reconsideration of the issue, it can hardly be doubted that the department can take a different view and have the matter agitated right upto the Supreme Court, if necessary. But when there is no change at all and when the position is exactly the same,....
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.... has not even attempted to distinguish them. (Assuming that the Collector could do so). Even after accepting the order of the Central Government he was still free to examine the question, of fact, after taking appropriate evidence as to whether the imported oil was, as a matter of fact an "edible oil". But he did not follow this course. The Collector has distinguished the decision of the Board dated 23rd January, 1981 (which was confirmed by the Central Government in revision). The Collector has refused to follow it on the untenable ground that the Board has not noticed some of the decisions of higher courts. It is an elementary judicial norm, not to ignore the decisions of the superior authorities on this ground. If there are errors of law and the decisions of the superior courts are not considered by an intermediate superior authority, the Statute provides for the rectification of mistakes by the appex Tribunal. This principle of judicial administration is recognised by the Act since it has created hierarchy of Tribunals under the Customs Act. 96. But principles of estoppel, res judicata or stare decisis are old and traditional methods of ensuring justice and fair play in....
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....special bench of the Board), he upheld in law. Let us now examine the administrative and the policy aspect of the matter. Under the Scheme of the Act it is to be presumed that the Central Government while exercising the revisional power under Section 131 of the Act knows the policy, the law and the trade practices. Its function is to remove the doubts and inconsistencies in the implementation of the policy. In Liberty Oil Mills' case the Supreme Court has held that courts do not possess the expertise and are consequently incompetent to pass judgments on the appropriateness or the adequacy of a particular import policy. It is also pointed out that in framing Import and Export Policy the Government considers the requirements of International and Internal Trade, agricultural and Industrial Development Plans, monetary and financial strategies. If this is the prescription for the superior courts with constitutional powers, can it be said with any logic or reason that a subordinate administrative tribunal can completely by pass the order of the Central Government in the revision? What is the expertise of such a subordinate tribunal, in these vital policy-considerations, as compared to th....
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....d order, on the last day of his retirement. It is difficult for me to agree with either of my brethren. 100. In Bhopal Sugar Industries v. Income Tax Officer, (AIR 1961 S.C. 182 at p. 185) the Supreme Court has ruled on the competence of the High Court in the similar situation. Judicial Commissioner of Bhopal, in that case, had upheld the order of the Income Tax Officer on the ground that the order of the Appellate tribunal (which the officer had refused to follow) was illegal. The Supreme Court found that the order of the Tribunal had become final. The Court then held : 'The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think, in the circumstances of the case, it is open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order." The Court further held : Such refusal (by the Officer) is in effect a denial of justice and is further more destructive of one of the basis principles in administration of justice based as if it is the country on hierarchy of courts..... the result would be chaos in the administration of justice." Further, Section 131(3) is a general revisi....
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....odorisation. He had filed 18 affidavits of concerns marketing refined oil in his support. I.S.I. Specifications were attached, which supported trade practice. No evidence was produced by Appellant. They only relied on scientific books. The ISI specifications were disclosed in the affidavit. The petitioners were not taken by surprise. It must be noted that the burden of proving that the requirements of natural justice are followed, is on the Government. - The Board of High School v. K. Chittra Srivastava (AIR 1970 SC 1039). It may be further noted that the Collector had not collected any independent evidence of trade practice or otherwise but had merely relied upon the ISI specifications in coming to the conclusion that industrial oil was covered by Appendix IX. I, therefore, hold that the impugned order of the Collector is a nullity and non est for violation of principles of natural justice. 102. The second limb of the argument is that the impugned decision of the Collector is not his own but taken at the dictate and behest of the Joint Controller and his office. The submission is that a decision of a quasi judicial tribunal is bad in law when he surrenders his judicial pow....
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....hri Takhat Ram, Joint Controller after he failed to pursuade the Central Government, while deciding the revision proceeding under Section 131. The said confidential D.O. issued on 4.9.1982 was issued after the AM 81-82 and AM 82-83 Import Policy public notices were issued. By the date the said confidential D.O. was issued, industrial oil was already made a canalised Item. Therefore, there was no occasion to issue such instructions. Further, the purported basis of his confidential D.O. was the large scale imports from Singapore and Philippines. Admittedly, in the present case, the import was from Sri Lanka and not from Singapore or Philippines. It was the duty of the Collector of Customs, to address himself to these aspects of the administrative instructions. If he had discharged his judicial duty judiciously he would have discovered that the said administrative instructions were not applicable and were irrelevant, apart from the fact that they were legally impermissible. I have, therefore, no hesitation in declaring the Impugned Order bad in law and non-est. The Collector in his affidavit has stated that he has taken independent decision. On the admitted facts stated above, it can ....
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....ted earlier has completely ignored the Central Government and the Board. He turned a deaf ear to import of industrial oil cleared by the Collector of Customs, Bombay in May, 1981. The Kandla Port had itself cleared industrial oil imported by the present petitioner himself in July, 1981. The Collector has not shown even the minimum judicial discipline to distinguish between the July-1981 - import of the petitioner and the present import. He simply did not deal with it although the fact was brought to his notice. He has also not referred to any decision of any Collector of Customs which had penalised the import of industrial oil, after the decision of the Central Government in revision, thus the relevant evidence on the record produced by the petitioner was not considered in arriving at the principal finding of fact. The evidence of the S.T.C. is thrown overboard by the Collector of Customs on certain (unreasonable) grounds which no judicial officer will do. He has misunderstood the submission of the petitioner in this regards. The letter of the STC was not produced as correct interpretation of the relevant Entry in the policy. It was only produced to establish a fact. S.T.C., as a t....
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....iteral) specifications of I.S.I. was a better evidence than the actual chemical examination done by Government Analyst. The whole discussion of the Collector in this regard is utterly vague and confusing. He only looked to the word "refined" but overlooked the word "industrial". As stated earlier neither the statutory order nor the Import Policy notices require that the imported oil must answer an I.S.I. specification. Further, the said publication of the ISI itself makes it clear that their object is to provide specifications for marketing and food adulteration purposes. Reference to ISI specification, by no stretch of imagination can be called an evidence. In any case, it was totally irrelevant for the enquiry before the Collector. 106. To sum up, the Collector has not considered the petitioner's evidence on record and the department did not produce any independent evidence to counter the petitioner's claim. The conclusions are such as no reasonable man would draw. The findings of fact and the Order of the Collector are perverse. They are, therefore, illegal and are set aside. Imposition of restrictions laid down by subsequent policies: Arbitrary. 107. But the ....
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....the nature of administrative instructions. They are always prospective in operation. Collector's reliance on A.I.R. 1969 S.C. Page 1114 is totally misconceived because the judgment deals with the statutory provisions and not with the executive instructions. It may be noted that the Counsel for the respondent did not reply to the above contentions of the petitioner at the time of the hearing. Confiscation and Fine. 108. We have so far seen how the Collector's order is vitiated due to arbitrariness in the implementation of the policy and for other reasons. Let us look at the final operative order now. The Collector has confiscated the goods but released them on fine of Rs. 5 crores. Imposition of confiscation and penalty is a quasi judicial function. Therefore, the order confiscating the goods should be a reasoned order. But the impugned order is not a speaking order. While imposing the fine of Rs. 5 crores the Collector has held that the petitioner had "deliberately flouted" the provisions of law. Neither the law nor the peculiar facts of this case are even attempted to be discussed before taking an extreme step of confiscation and imposition of an excessively heavy penal....
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....re was a case in which discretion should have been exercised in favour of the importer, this was such a case............The collector does not appear to have dealt with case as if he was vested with judicial discretion because he has not given any reason why the drastic publishment of confiscation should have been imposed on the appellants whereas two other similar merchants who had committed the same offence had been let off with a warning. (Page 448) On these findings the High Court set aside, the order of confiscation. 110. M/s. Jagan Nath Aggarwal v. Sh. B.N. Dutta & others (C.A. No. 801 of 196't) dated January 10, 1967, on identical facts, has emphasised on the penal aspect of Section 167 of the Sea Customs Act. There are question was whether, the licence on true construction, authorised the import of camphor B.P. According to the Government, camphor B.P. was not covered by Sr. No. 109 of Part IV of the I.T. Schedule but fell within Sr. No. 131 of Part IV and its import was not permissible under the licence. The facts of the case disclosed that other importers were allowed to import camphor B.P. under similar licences. The Supreme Court held: "assuming that there is a ....
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.... it is clear that the Collector's order of confiscating the goods and imposition of penalty suffered from lack of jurisdiction or in any case failure to exercise jurisdiction judicially. It is a non-speaking order and is, therefore, violative of the principles of natural justice. 113. The Joint Controller of Imports and Exports (Shri Tirath Ram) had pleaded to the Central Government, while exercising the revisional power under Section 131 of the Act, that a fine of Rs. 25,00,000/- imposed on the sister concern of the petitioner, was too nominal and heavy fine should have been imposed. From the chronology of events and correspondence, I have already held that the Collector's order was not his own but was one passed at the behest of the Joint Controller. It is reasonable to infer that the extreme measure of confiscation and imposing heavy fine of Rs. 5 crores (the petitioner calls it a 'savage' fine) was at the dictates of the Joint Controller, as no reasons whatsoever are assigned by the Collector. On this ground also the Collector's order has to be quashed. 114. I must add that the requirements of law of exercising the discretion judicially, to discuss the evidence ....
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....e Central Government, the Board under the Act, various Collectors of Customs and S.T.C. have taken a view that industrial coconut oil was not a canalised Item. Can it be said that all these agencies of the Government were oblivious and complacent of smuggling and loss to national economy? Can it be said that they connived at the illegal gains being made by the petitioner. I would prefer to by facts, the peculiar facts of this case. I would also like to follow some well known principles of judicial decisions. More caution should be exercised where the offence is serious or stakes are heavy. So also, more the publicity to a case greater is a need to have sharp focus on the actual facts. Another principle of judicial discretion was laid down by Lord Justice Scrutton in Rex v. Home Secretary, (1923) 92 L.J. K.B. 791: "It is, indeed, one test of belief in principles if you apply them to cases with which you have no sympathy at all." This principle was cited with approval by Vivin Bose, J. in S. Krishnan v. State of Madras A.I.R. 1951 S.C. 301. On the facts of this case and with these principles in view I hold that the Collector's order was bad in law and should be set aside. Violatio....
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....e illegal and unconstitutional. The submission of the petitioner is accepted. The impugned order violates Article 14, 19(1)(g) and Article 300-A of the Constitution. Interpretation of Entry "Coconut Oil". 117. The discussions so far should suffice to set aside the impugned order and the success of the writ petition. But the Counsel for the respondent has tried to affirm the impugned order on other grounds. It is submitted that Para 5 of Appendix IX of Import Policy A.M. 1980-81 mentions "Coconut oil" (amongst other oils) as a canalised Item through STC. It is submitted that the Entry "Coconut oil" is not qualified or restricted by any words. Therefore, the Entry covers both edible and industrial varieties of coconut oil for the purpose of canalisation. It is also submitted that the trade meaning of Coconut oil is not edible "Coconut oil" because only in small part of India "Coconut Oil" is used as an edible oil. It is then submitted that even if two interpretations are permitted, the one accepted by the department should not be rejected by the court, exercising the jurisdiction under Article 226 of the Constitution, unless the Court holds that the interpretation is so pe....
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....nd landmarks. Frankly, as Judges, we are no experts in the field as compared to these Government agencies (Liberty Oil Mills case - (1984) 3, S.C.C. 465 ..... ). I am also unable to hold that the Central Government's order under Section 131 was misdirected order. That order had become final both under the Act and for the reason that it was not judicially challenged. Thai order is not an impugned order before us. The reasoning as to why the words 'all types' were subsequently added to the Entry 'Palm oil' is not discussed by the Collectorate at all nor has he refused to follow the order of the Central Government on this ground of alleged misdirection. It is only in counter-affidavit that a half-hearted explanation has been attempted. Half-hearted because, the counter-affidavit states "It must have become necessary" not "that it was in fact necessary". But this vague assertion of the counter affidavit is also not correct. The special Bench of the Board has held that 'Palm Stearine' is an Industrial Oil not covered by Appendix IX. It is not a "Solid" as stated in the counter-affidavit. 120. Now, it is a settled law that the such entries in the Tariffs are not to be interpreted....
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....ms were enumerated for exemption. But there was an amendment in the Act and words "betel leaves" were deleted. The Supreme Court held that the legislative intent was not to exempt the betel leaves. The court held that the word "vegetable" must be understood in the popular sense as understood in common language. 122. Sales Tax Commissioner, Indore v. Jaswant Singh, (AIR 1967, S.C. 1457) dealt with the question as to whether 'coal' includes 'charcoal'. The court held that both are used as fuel and the traders and consumers do not make any distinction between them. The court observed : "It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal." 123. Black insulating tapes used in electric insulation's are not "adhesive tapes" and the import was not banned, was held by the Bombay High Court in H.R. Syiem v. P.S. Lulla (72, Bombay L.R. 534). Adhesiveness is only a secondary characteristic of the insulating tape. In Dunlop India Ltd. v. Union of India (AIR 1977 S.C. 597) the Supreme Court held that V.P. Latex, as known to trade and commerce in India and abroad, is raw rubber falling under Item 39....
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.... are possible, one favouring the Department should be preferred by the court unless it is found to be perverse. Some decisions are cited in support of this. In Collector of Customs v. V.K. Ganga Shetty (AIR 1963, S.C. 1319), the respondent had imported what are called "Feed-oats" without licence. The question was whether "feed-oats" were "fodder" under Item 42 (Part IV - Import Trade Control Schedule) which required no licence or the same fell under Item 32 "Grains" requiring licence. The Supreme Court held that the Department's interpretation that the feed-oats were grains under Item 32 was not perverse and, therefore, should be accepted. The Supreme Court also relied upon on Venkateswaran v. Wadhwani (AIR 1961, S.C. 1506). The decision in Ganga Shetty was followed by the Supreme Court in V.V. Iyer v. Jasjit Singh (AIR 1973, S.C. 194). In that case also there was an apparent conflict between the two Items/entries in Part V, Schedule-1 to Import (Control) Order, 1955. Item 74(vi) related to spare parts in power driven agricultural machinery (parts of sprayers). Item 74(x) was a specific Entry regarding sprayers. The Department's contention that the goods in question fell under Item....
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....litical considerations and for party gains. This criticism is usually directed where the goods are available in plenty in local markets or where the goods are luxury goods. Courts cannot normally go into these considerations to judge the wisdom of import policy on such general allegations. However, the implementation or policies must always be done within the framework of law. Therefore, the courts have power to examine in each case whether the findings are based on evidence, whether principles of fair-play and natural justice are followed and whether the fundamental rights are breached or not. I do not think that the Liberty Oil Mills case helps the respondents. 129. But by merely concentrating on the Tariff Entry, the respondent is missing the real substance. The question for the decision is not what "Coconut oil" means. The real question for the decision is whether Industrial Oil was also a canalised Item? In other words, how the trading community has understood entries in Para 5 of the Appendix IX, in A.M. 1980-81? The Entry in Para 5 reads as under : (1) Coconut oil. (2) Copra. (3) Groundnut oil/seeds. (4) Palm oil (all types including palm olein)/Palm seed....
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....conclusion. 131. Brother Sachar has referred to several entries in Appendix 'A' of Import Policy 1978-79 and 1979-80, and has held that Entry 1 in Appendix X of A.M. 1980-81 does not permit importation of industrial oil as raw materials. I do not agree with this interpretation. If it was so why the so called 'clarification was made only in 1981-82 policy? Can it be imagined that Government would permit alleged illegal importation of Industrial oil in large quantities when it has a power to change the policy even in the middle of an import policy year? Almost similar pleas of the change in the entries in the relevant appendices was made before the Special Bench of the Central Board which pronounced its decision on 28.5.1982. But the Board observed "It may be true that the Policy during the particular period does not necessarily have the binding effect on the subject policy period. But in this case the position is somewhat different, inasmuch as there has been numerous changes in the policy over a considerable period, sometime excluding a variety, another time including the same or other varieties, but all with a view directed towards regulating the flow of 'edible oil' into ....
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....the contracts for import of 6.9 lakh tonnes out of which 4.5 lakh tonnes have already been shipped. Sales of total oils to-date were 4.3 lakh M.T. Sales in the corresponding period of last year were 1.8 lakh M.T. thereby indicating a substantial step-up in the supply of imported edible oils. The imported edible oils are distributed to Vanaspati units all over the country at economic and pre-determined prices so that the end-product prices are maintained. The Corporation is also supplying through State Govts. edible oils for direct consumption. In order to meet the timely requirements of the Vanaspati industry, the Corporation, besides stepping up the over-all storage capacity, has created a number of new distribution points. The total storage capacity has been expanded from 87,000 M.T. in the beginning of the year to 2.21 lakh M.T (as of date) and in the Northern Zone storage capacity has been expanded from 5,000 M.T. in the beginning of the year to 32,000 M.T. (as of date). The Corporation is presently meeting 75% of the requirements of the vanaspati industry in the country. The prices which were fixed on November 1, 1977, are still being maintained for the vanaspati industry insp....
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....uring the oil year ended 31-10-80, the total imports were 11.49 lakh M.T. In line with Government Policy, supplies of higher quantities of edible oils are being made under Public Distribution System. To facilitate movement and distribution of RBD Palm Oil, the Corporation entered into tinning operations at Port Towns. To meet the varied demand of States arising out of lean and festival season and availability of indigenous oils, the Corporation maintained two months' buffer stock of edible oils in almost all the States. By this, the prices of edible oils were kept under control." 137. These reports provide following outline on canalisation : 1. To meet the domestic shortage, the premier foreign-trading organisation - S.T.C. started imports of large quantities of edible oil, particularly from 1976-77. 2. For converting S.T.C. into more effective instrument of bringing about socioeconomic changes, canalisation policy was required to be reviewed - Indian Institute of Management, Ahmedabad was entrusted with the task of studying and suggesting new directions in canalisation and for achieving the objectives of Government in relation to price support, price stability ....
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....evidence. Appendix 8 lays down Items which are canalised. Appendix 10 is a list of Items which can be imported as O.G.L. Copra in its use in Vanaspati and industrial use is alone canalised. According to Respondent 'Copra' is used only for industrial-non-edible purposes. How is then used for Vanaspati? Soyabean oil is also Canalised for the use of Vanaspati and industrial purpose. If Government was aware of industrial use of coconut oil why did not expressly mention the same in relation to coconut oil? This failure cannot be made good by referring to other entries which are in positive and clear language. Absence of 'coconut oil' in O.G.L. Items is of no significance. If only shows that a licence is necessary and nothing more. The heading 'Edible Oils' in App. 10-OGL, does not signify much. If Respondents' logic is to be pursued it would mean that 'Coconut oil' is not an edible oil at all. This is contrary to the General Submission of the Respondent. Palm oil of all types is mentioned in O.G.L. Items. But its refined variety and palm oleine even for edible purposes is excluded from canalisation list. This shows that neither App. 8 nor 10 have any scientific or logical basis. The rea....
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....No argument on this basis was advanced before us by the Counsel for the respondent. Naturally, the petitioner did not have any opportunity to meet the above submissions of the respondent. Before us, only petitioner has filed his written submissions. None were filed by the Respondent. Prohibitions imposed by subsequent policies : 140. As an alternate argument it is submitted by the respondent that the importation by the petitioner was illegal because of breach of conditions imposed in the licence in terms of subsequent policies. Petitioner held letters of authority for valid licences under Section 3 of the Order issued for A.M. 80-81. Petitioner is an export house and is, therefore, entitled to import facilities available to Export Houses under Para 174 of A.M. 80-81. 174(iii) entitles the petitioner to "Imports of Items on Open General Licences in the manner set down hereunder." Para 174(iv) allows "Additional Licences as provided hereunder". Under Para 177(5) Additional Licences are given further facilities as under : "The Additional Licences will also be valid for import of raw materials, component, spares (excluding those covered by App. 5) which have been placed u....
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....an administrative instruction and it cannot be given retrospective effect as in case of a statute. As a condition of revalidation, Para 185(3) would amount to amendment of the licence issued under the statutory provisions of Section 3 of Import (Control) Order, 1955. Section 7 of the Import (control) Order 1955, permits an amendment of a licence only to "make such licence conform to the provisions of the Act or this order", and not to destroy or capitulate it. There is another serious objection. The Collector has held that public notice which made Para 185(3) applicable to additional licences has retrospective operation. He has treated it as statutory provision. This is a grave error of law on the face of the record. Public notices are executive instructions and they cannot be given retrospective effect. The said conditions and restrictions were imposed at the time of revalidation in the present case. The period of validity means the period of shipment despatch permissible for goods concerned. Export Houses are required to keep the period of shipment flexible. They have no control on the circumstance abroad. Shipments may be delayed because of short supply, strike etc. Para 199 of ....
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....e applicable to additional licences for the first time, by the said public notice. In East India Commercial Company v. The Collector of Customs, 1983 (13) E.L.T. 1337 (S.C.) = AIR 1962 S.C. p. 1893, the Supreme Court has laid down that the import control handbook or the public notices are not statutory in character and, therefore, cannot impose any conditions on the licence issued under Section 3 of the Import Control order. The same principle was reiterated by the Supreme Court in J.C.O. of Imports and Exports v. M/s. Amin Chand, (AIR 1966 S.C. 478 at page 488). It was held that the prohibition imposed by subsequent policy change is no prohibition because it is not issued under Section 3 of the Imports and Exports (Control) Act of 1947. The principle was further recognised by the Supreme Court in M/s. Oswal Woollen Mills Ltd. v. Union of India (AIR 1983, S.C. p. 969). 146. It was further held by the Supreme Court that the conditions subsequently imposed on the licence, being non-statutory, cannot be treated as prohibitions imposed by the Import and Export (Control) Act, 1947 and Customs Act. Therefore, confiscation order are without jurisdiction. East India Commercial Co. (AIR ....
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.... to the facts of the present case. The petitioner already held valid licences, and they were validated twice. The licences were granted under Section 3 of the Import Control Order. The petitioner had, therefore, a vested right to import the goods on the said licences, unless there were statutory provisions to the contrary. In Super Traders (1983 E.L.T. 258) this Court held that there is no vested right in importation because Government is free to make statutory and policy changes even during the currency of Import year. The real question is this. Where no statutory or Policy change is made in a given Import year or period, whether an importer has no right to expect that the goods for which he holds a valid licence can be imported? And whether such a right can be denied by applying subsequent policy or public notice? The decision does not render any assistance to the respondent. 148. The Collector has then referred to Para 222(1), 222(2) and 224(4), mentioned in the revalidated licence to show that there was a prohibition to import industrial oil as raw material. There is no discussion or analysis of these provisions in the Collector's order. We are concerned with importatio....
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....gainst firm orders for which irrevocable letters of credit are opened on or before 28.2.1981, without any grace period whatsoever. (16) Nothing in this licence shall affect the application to any goods, or any other prohibition or regulation affecting the import thereof, in force at the time when such goods are imported. XXX XXX XXX A condition similar to Condition 15 was imposed by O.G.L. Order 1 of 1981, dated 3-4-1981. The said condition required that importation should be made before 31st March, 1982 or before 30th of June, 1982, without any grace period. 150. It must be pointed out that the said statutory O.G.L. Orders were not relied upon by the Department before the Collector, nor the Collector, in the impugned order, has held that import in question was illegal for the violation of the said orders. The argument of the respondent is that all prohibitions imposed by the said orders on Actual Users are applicable to export houses because they are also required to sell the imported goods to Actual Users. Now, a bare reading of Import Policy Publication will show that Actual Users and export houses are treated as distinct and separate classes for the purposes of....
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.... Actual Users, actually spend the limited foreign exchange. An Export House, on the other hand earns additional foreign exchange for the national economy. This is the rationale in treating them as distinct classes. It is thus clear that the prohibition, if any, in the O.G.L. Orders are not applicable to Export Houses using additional licences. There is another reason for this conclusion. O.G.L. is a general permission. It is not subjected to normal licensing requirements and procedures. Naturally, the conditions are required to be imposed in the statutory order itself. There is no licence (in the normal sense) on which the conditions can be imposed. As against this, Export Houses are required to obtain licences such as REP licence or additional licence. The language of 174(3), 176 and 177(5) is very clear. It is stated that the import can be made of the Items placed on the Open General Licences or raw materials etc. which have been placed on the Open General Licence for Actual Users. The said provisions do not say that raw materials can be imported subject to the conditions mentioned in the statutory O.G.L. Orders. A reference to statutory O.G.L. Orders is only for the purposes of ....
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....ifficult to agree with this conclusion. The said Notification was issued to give statutory effect to Bangkok Agreement on Trade Negotiations among developing countries of the ESCAP. The Agreement had become operative from 17th June, 1976. One of the principle objects of the Bangkok Agreement was to give tariff concessions for imports from five countries, namely, Bangladesh, Laos, Republic of Korea and Sri lanka on reciprocal basis between the States (Annual Report 1976-77, Government of India, Ministry of Commerce - Page 102). It may be noted that imports in the present case were made from Sri Lanka. Any importer who imported the goods from Sri Lanka was entitled to the said exemption. No special exemption was given to the petitioner. Apart from this, the Entry in the exemption Notification is coconut oil (refined). The petitioner claimed exemption as a refined coconut oil because he had disclosed in the bill of Entry that the imported oil was "refined industrial coconut oil". The Entry in the exemption Notification merely refers to coconut oil similar to the relevant O.G.L. Entry in the present case. When the Entry in the exemption Notification refers to the refined oil, it only m....
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....blic notice in question was also issued from Delhi. This court has, therefore, territorial jurisdiction to hear the writ petition. Alternate remedy : 155. Writ jurisdiction in certiorari is a constitutional jurisdiction. Amendments to Customs Act by Finance Act No. 2 of 1980 would not oust the jurisdiction. I have already held that the Collector's order was without jurisdiction, was perverse and contrary to the principles of natural justice. I have also held that the said order violates Fundamental Rights of the petitioner under Article 14 and 19(1)(g) of the Constitution. A mere appropriate remedy, therefore, is the Extraordinary remedy of writs. Preference for alternate remedy is a rule of discretion and convenience, not one affecting jurisdiction. The Writ Petition was admitted on 18.1.1983 and final hearing was expedited. It was heard by one judge for five days and by another for fourteen days. The matter was taken to Supreme Court for the transfer of these petitions. The Supreme Court initially transferred these petitions to Rajasthan High Court so that they could not disposed of expeditiously. After learning that the writ petitions were already set for final hearin....
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....ithfully live unto the expectation of the Government, I do not think that it will be able to come to a conclusion different from that of the Central Government and the special Full Bench of the Board. I do not think that the respondent can complain of any loss of right of appeal. It is asserted by the petitioner that in case of M/s. Jain Oil Mills and Metre Exporters, whose consignments of industrial oil of 5000 M.T. each, were cleared by the Collector of Customs on 12.1.1983, no appeal was preferred by the Department. This assertion was not contradicted by the respondents at the time of the arguments. The appellate tribunal had already come into existence by that date. 157.  The Respondent has accused the petitioner of deliberately preferring the writ remedy so as to disable it from fully availing its right of appeal before the Appellate Tribunal. This argument has impressed by my two brothers Judges. On the contrary the petitioner accuses the Respondent of a deliberate design to bypass the order of the Central Government and to avail of the new forum to improve upon its original case. I do not think that the question of the jurisdiction of this court (and the alternate re....
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....not to take away the judicial control of the High Courts but to make the Tribunal itself a pronouncedly judicial body, in which litigating public can repose confidence as in case of High Courts. 158. The Appellate Tribunal is very young, - has just completed two years. Some of the judgments of the Tribunal raise a strong hope that it will succeed in creating confidence amongst the litigant public. In Atma Steels (P) Ltd. v. Collector of Central Excise (1984 E.L.T. page 331), one of the questions was whether the President of the Tribunal has legal competence to constitute a larger Bench of five members for resolving conflicting views/decisions of different Benches of the Tribunal. The Tribunal asserted that it will follow the judicial practice of the superior courts, such as High Courts and Supreme Court. It was held : "The Scheme of the Act as indicated by sub-section (3) of Section 129, unmistakably is to ensure a unified and integrated approach in matters relating to classification as well as rate of duty and valuation, which need has been felt because of different collectors working in separate jurisdictions and because of the importance of these matters both to the a....
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.... Item 68 of the Tariff. A show cause notice was issued by the Superintendent, Central Excise, Surendra Nagar, to the appellant as to why additional duty on the basis of Item 49 of the Tariff (Rolling Bearings) should not be charged. The Assistant Collector accepted the appellant's explanation that the proper classification was under Item 68 and dropped the proceedings. Shri B.V. Kumar, the Collector of Central Excise, Ahmedabad, reviewed the order of the Assistant Collector, purporting to act under Section 35A. The Collector relied upon certain Trade Notices and Tariff Advices. The Collector set aside the order of the Assistant Collector and imposed additional duty on the appellant. On that basis further additional demands were raised by the Superintendent, Central Excise. The appellant filed a writ petition in the Gujarat High Court challenging the order of the Collector and further additional demands. The High Court directed the appellants to prefer revision to the Central Government and granted interim stay of recovery. The appellant preferred a revision application. When the revision was pending before the Central Government, the present Tribunal came into being on 11.10.1982. ....
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....less there is any good or cogent reason for the change in view. For example, if the facts are different or if further and fresh facts are brought on record or if the process of manufacture has changed or if the relevant entries in the tariff have undergone a modification or if subsequent to the earlier decisions there has been the pronouncement of a High Court or the Supreme Court which necessitates reconsideration of the issue, it can hardly be doubted that the Government can take a different view and have the matter agitated right upto Supreme Court, if necessary. But when there is no change at all and when the position is exactly the same, legally and factually, as it was on the earlier occasion then we think that the department should be restrained from capriciously changing its stand and inflicting unnecessary proceedings and hardship upon assessees. Any authority can depart from a finding arrived at in an earlier year only for cogent reason. There should be either fresh facts or a change of law or at least a suggestion that while arriving at the conclusion of the earlier year certain material facts or provisions had not been considered and that if they had been considered ....
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....Carpets Ltd. v. Union of India, 1978 E.L.T. 111 (119) F.S. Gill, J. (who is now the President of the New Appellate Tribunal) as a Judge of this Court held : "I have already observed that after the passing of the order of Government of India on 14.4.1972 (Section 36 of the Central Excises and Salt Act, 1944) no change in the process of manufacturing the goods or even in the law has taken place. The Assistant Collector, a subordinate authority, is therefore, bound by the decision of the Government of India." 162. The above decisions would amply demonstrate that it is futile to direct the petitioners to prefer an appeal to the appellate tribunal. But it is also futile to remit the matter to the Tribunal on the question of penalty as is done by two of my brothern. On identical facts the special bench of the Tribunal in Structural and Mechineries (Bokaro) Pvt. Ltd. v. Collector of Central Excise, Patna, 1984 (17) E.L.T. 127, has held that penalty could not be imposed on the appellants in that case. The question before the Tribunal was whether the appellants who carried out fabrication work in the year 1979-80 without obtaining a Central Excise Licence were entitled to the ben....
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....h illegal conditions existed. There was no policy to canalise industrial coconut oil through S.T.C. in the Policy Year 1980-81. The trade meaning of coconut oil particularly for the purposes of canalisation (in the light of the history of canalisation) is edible coconut oil. The petitioner had imported the oil in question as raw materials which was neither canalised nor prohibited. Therefore, there was no violation of Section 3 of the Imports and Exports (Control) Order, 1947 read with Section 11 of the Customs Act, 1962. The confiscation order passed under Section 111(d) of the Customs Act was illegal. The show cause notice and confiscation order are quashed. The petitioner is entitled to the refund of the amount of fine deposited by it in lieu of confiscation, in both the petitions. The writ petitions are allowed. The rule is made absolute. The petitioner shall be entitled to Rs. 3,000/- as costs for one set in both the petitions. Sd/- S. B. WAD JUDGE. December 20, 1984. 164. [Judgment per : Khanna, J.]. - I am in respectful agreement with the detailed and considered judgment of brother Sachar, J. 165.  The import policy of any country, particularly a ....
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.... and applicability of Item 74(vi) of Part V of Schedule I to Imports (Control) Order, 1955 made under Section 3(1) of the Imports and Exports (Control) Act, 1947, and Customs authorities adopt a reasonable view relating thereto which is favourable to Revenue, such finding of the authorities cannot be interfered with by High Court under Article 226 even though another view contrary to one adopted is in favour of the subject. 168. It is now also well settled that the Government of the country is well competent to make import policy of total prohibition or render, the same under heavy customs barrier or entrust the same to selected agencies or channels in the interest of the public. Consequently, the decision that import shall be canalised is per-se a reasonable restriction, and is difficult to challenge before courts (Glass Chatons importers and Users Association and others v. Union of India and others, (AIR 1961 Supreme Court 1514). 169. This is next no gain-saying that in the interpretation of Items in taxing statutes what is understood in common parlance is the meaning which has to be attached to them. They have to be taken in the sense which people conversant with....
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....the goods which might be in force at the time of their arrival. The petitioner having chosen to act under these licences could not be heard to plead that this vital condition of import was not operative. In the year 1981-82 and 1982-83 no matter of doubt had been left when it was clarified that Item coconut oil included both edible and industrial. This incorporation was plainly clarificatory in nature as it brought but what was always meant or understood to be. Thus the petitioner in any case was left with no misgiving whatsoever that in September 1982 when the import was effected, it was prohibited in private hands and had to be canalised through the State Trading Corporation only. Even independent of this specific condition incorporated in those licences, it is now well settled that any restriction in the Import Trade Control Policy Book or Red Book would govern the licence as one of the conditions upon which import could be made under the licences. See in this regard the decision of the Supreme Court in Hazarimal K. Shah v. Collector of Customs, Madras, [1971 (3) Supreme Court Cases 840]. 171A.The scheme of revalidation of licences enjoins revalidation for the first six month....
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.... as S. Jagadeesan v. Ayya Nadar Janaki Ammal College and another ' (AIR 1984 SC 1512). Than Singh Nathmal & Others v. The Superintendent of Taxes, Dhubri and others (AIR 1964 S.C. 1419) and The British India Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs Calcutta and others (AIR. 1964 S.C. 1451). 173. It, however, appears that this recourse to moving the High Court directly is not altogether an innocent and straight forward conduct. My learned brother Sachar, J. has rightly termed it as a sort of trap. This is apparent from the manner in which the decision of the Central Government dated 31.3.1982 is sought to be treated as the final word for the customs department, and this court is sought to require the customs authorities to abide by the same whatever view they or this court may hold about the meaning attachable to the Item "coconut oil" and the implications of the terms and conditions of the licences. It is not disputed that if an appeal had been filed, the Tribunal could have come to an independent decision and even differed with the said decision of the Central Government. That, however, the Tribunal has been shut out from doing so by being....
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.... but for the magic wand treatment that the petitioner has sought to attach to this order. It has, therefore, been felt necessary to bring out the inherent lack of competency of the Central Government to make such order under Section 131(3). It would be proper to reproduce the same verbatim as under :- "(3) The Central Government may of its own motion annul or modify any order passed under Section 128 or Section 130." 174. When such had been the strategical procedure adopted by the petitioner, I should not have been inclined to require the Tribunal to go into the propriety of the quantum of redemption amount. This is veritably putting the petitioner in advantageous position as if he has actually filed an appeal before the Tribunal. I would have felt more inclined to leave the petitioner to himself file the appeal and agitate the matter before the Tribunal and seek condonation of delay. The discretion in that regard would rest with the Tribunal and the same should not be fettered by us by requiring the Tribunal to treat the petitioner as if he has already filed an appeal before him. 175.The redemption amounts levied in the two cases before us totaled Rs. 5 crores. These....
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....h the varieties. It is, therefore, futile to say that this term has implication of edible variety only. 177. It has been taken note by brother Wad, J., that the propriety of importing edible coconut oil has been felt from time to time because of shortages in the internal market, and to sustain the price level in the domestic consumer-market. Non-edible coconut oil was not imported as production in the country adequately met the requirements. In the circumstances, if the State Trading Corporation was importing edible variety alone that was as a fact only, and the letter obtained by the petitioner from that Corporation simply narrated what was in vogue or happening. Simply because the requirements of the country at a given time did not compel the Government to import industrial variety, the same could not be taken to fall outside the canalised Item of coconut oil. It still remained as such. The letter from the State Trading Corporation, therefore, could only clarify what was actually being canalised as a fact, and not what ought to be essentially canalised. The scheme of the Statute has in this regard conferred the exclusive power with the Chief Controller of Imports &: Expor....
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....ht and constitutes departure from erroneous persistency. 179.It is also not unoften for a retiring judge to deliver judgments shortly before or on the date of retirement in matters which have been heard quite some time earlier. However, the position is different when the case itself is taken up by an officer on the last date involving stakes of high magnitude, and adjudicating upon them before laying the charge of the office. It would be all the more so in view of the interpretation of the powers available as referred to by me above under Section 131(3) of the Customs Act. 180.A number of decisions have been referred in which the courts have observed that the decisions of the highest Tribunal are binding on the subordinate authorities. Those were mostly cases in which remand orders had been made. There can be no possible dispute that decision of the highest Tribunal in a particular case is binding on all such authorities in that case. There can also be cases where the very nature of the decision would bind for future assessments as well, such as recognition of partition or bringing the property into the common hotchpotch of the Hindu undivided family. Such acts take place onc....