TaxTMI 
TaxTMI 
2003 (8) TMI 316
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....Bills of Entry filed on different dates in the year 1999. They had no specific licence for the imports. The Department took the view that the imported goods were not 'dried garlic' falling under ITC (HS) Heading 071290.04 but fresh garlic falling under ITC (HS) Heading 070320.00, which was a restricted item, for which specific import licence was required. The importers waived show cause notice and obtained clearance of the goods on the basis of orders passed by the proper officer of customs. In a few of these cases, the Commissioner of Customs was the proper officer, while, in the rest of the cases, the Additional Commissioner of Customs was the proper officer. The Commissioner or the Additional Commissioner, as the case may be, confiscated....
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....d on by the department in these cases to deny the benefit of the above ITC (HS) heading to the appellants in respect of the goods in question, learned Counsel submit that the Tribunal (West Zonal Bench) has held that the circular is not valid and binding as it does not indicate that any doubt had arisen before the DGFT for clarification. The Tribunal has also held that, where any garlic under import is known as 'dry garlic' in commercial parlance, it should be so classified for ITC (HS) and Customs Tariff purposes. The decision cited by the Counsel is the one rendered by the West Zonal Bench in the case of J.B. Impex v. CC, Nhava Sheva [2001 (134) E.L.T. 210 (Tri. - Mumbai)]. It is, further, submitted that various co-ordinate benches of the....
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....ve effect to cover all imports from the date of commencement of the policy period. In this connection, learned DR relies on the Supreme Court's decision in Aero Leather Pvt. Ltd. [2003 (154) E.L.T. A98 (S.C.)] as well as in Collector v. Bhadrachalam Paper Boards Ltd. [1991 (55) E.L.T. A67 (S.C.). While, in the former case cited by the DR, the Apex Court held that an amendment of the Income-tax Act by the Finance Bill 1999 was clarificatory and hence had retrospective effect, in the latter case, it was held that an amendment brought about by an amending notification (No. 214/84-C.E.) was clarificatory and retrospective. Adverting to the description of the goods, learned DR refers to Section Note 2 in Section I of "ITC-HS Classification on Im....
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.... has been held by WZB in the case of J.B. Impex that the DGFT circular can have no legal and binding effect inasmuch as :- (a) there is no indication that any doubt in relation to dried garlic was referred to the DGFT; (b) dried garlic cannot be equated to dehydrated garlic. 6. Having considered the judgment of the WZB in J.B. Impex, we think, it is necessary to have a fresh look at the text of the DGFT's circular extracted below :- "It is hereby clarified that "Dried Garlic" classified under Exim Code No. 071290.04 ITC (HS) Classification, 1997-02 would be treated as "Dried Garlic" provided the moisture content thereof does not exceed 10%, ....
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....e considered as fresh garlic under ITC (HS) heading 070320.00, which required specific licence for import. It then became necessary for the competent authority to issue a clarification. We are given to believe that the circular dated 17-9-99 of the DGFT happened to be issued in such a situation. It is true that the circular does not say as to who referred the question for clarification to the DGFT. Nevertheless, in our considered view, this omission (if at all it is one) cannot detract from the legal validity and binding effect of the clarification rendered by the DGFT in exercise of his authority conferred by Central Government under Para 4.13 of the EXIM Policy. In this context, we may usefully refer to Section 114 of the Evidence Act, wh....