TaxTMI 
TaxTMI 
1992 (2) TMI 87
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....Calcutta Port on 16th January, 1992. On 13th January, 1992, the petitioner filed three several Bills of Entries in respect of the goods. These have been annexed as Annexure 'C' to the petition. 2. According to the petitioner the Customs Authorities took no steps to clear the bills of entry although they were obliged to release the bills of entry within 48 hours. The petitioner has drawn the attention of the Court to a public statement made by the Collector of Customs to that effect. The petitioners sent telex messages to the respondents for release of the bills of entry and also approached the Collector of Customs for release of the goods. Ultimately by letter dated 22nd January, 1992 the Assistant Collector of Customs, Appraising (Group 4) wrote to the petitioner stating that the petitioner was not an Actual User (Industrial) in respect of the goods in question. It was further stated that the Order No. 1/1990-93 of 30th March, 1990 had not removed the Actual User (Industrial) condition from Appendix 6, List 8, Part I items despite the issue of the first Public Notice No. 238-ITC of 31-10-1991 which, according to the Assistant Collector, had essentially only given certain relaxa....
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....e and which are relevant for the purpose of this application relate to Appendix 6 and the import of items under Open General Licence. The amendments effected in this connection relate to Entry No. 1. It is submitted that the raw materials imported by the petitioner are covered by Entry No. 1. By virtue of the amendment, "Actual Users (Industrial) and Others" have been introduced under the category of eligible importers. By this Public Notice it is argued, the conditions governing imports under Open General Licence were further amended. By virtue of the amendments it is submitted the terms and conditions governing imports under Open General Licence and the requirement for import by the Actual Users have been deleted. The petitioner also referred to the change in the heading to Appendix 6, List 8 to show that the import was being permitted by persons other than Actual Users. 5. It is finally submitted by the petitioner that the position was beyond dispute and that the Customs Authority had needlessly made the petitioner liable to pay demurrage amounting to Rs. 70,000/-. It is claimed that the Customs Authority are liable to compensate the petitioner for such payment. 6. On beha....
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....he Order do not apply to the import of any goods covered by OGL [vide Clause 11(4) of the Order]. Import under OGL is dealt with specifically under the Policy. 9. Chapter V, Para 58(3) of the Policy insofar as it is relevant provides as follows : "58(3). Under this Policy, import of a large number of raw materials, components and consumables has been placed under Open General Licence. Actual Users may meet the requirements of their imported inputs under Open General Licence subject to the conditions prescribed in Appendix 6 of this Policy." 10. An actual user has been defined in Chapter I, Para 7(1) of the Policy as follows : "7(1). "Actual User" means a person, who applies for/secures a licence or avails of the Open General Licence facility for the import of any item or an allotment of an imported item required for his own use, and not for business or trade in it." 11. Para 7(2) of the Policy states that "Actual User Condition shall be construed accordingly." 12. Appendix 6 of the Policy provides for the import of items under OGL. The categories of importers, the items allowed to be imported by them under OGL and the conditions governing their importation are tab....
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....(i) in condition No. (3), the following shall be added at the end, namely :- "except in the case of items covered by Part I of List 8 of Appendix 6 of the Import and Export Policy, 1990-93". (ii) condition Nos. (7), (8) and (9) shall be omitted. (iii) in condition No. (25A), in the second sentence, for the word "including", the word "except" shall be substituted." 16. In my view the outcome of the two public notices was a throwing open of the import of inter alia raw materials appearing in Appendix 6, List 8, Part I to persons irrespective as to whether they are actual users or not. 17. The language of the first Public Notice is explicit. It deleted 'Actual User Conditions' in respect of named items. The question is therefore - What are "actual user conditions"? It is nothing more than the condition of actually use the item imported for the importer's own use and not for business or trade in it. This follows from the definition of actual user in the policy as quoted earlier. An importer who does not actually use the item imported is not an actual user. There cannot be an actual user who does not use. The concept does not survive without the condition. To contend that....
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....ce although this fact may have a bearing on the bona fides of the Calcutta Customs in holding otherwise. 22. PN No. 273-ITC (PN)/1990-93 dated 13-2-1992 does no more than effect in particular the changes wrought by the first public notice. The amendments specifically incorporate the general principle laid down by the first public notice in the various relevant provisions of the Policy. The third public notice only makes explicit the changes brought about by the first Public Notice and leaves no manner or doubt as to the intention behind the first Public Notice and the object sought to be achieved thereby. 23. Some of the particular amendments effected by the third Public Notice which are specifically noted would show that the requirement that the goods named in the first Public Notice shall be made only by actual users has ceased to exist. Prior to the amendment, Appendix 6, Entry No. 1 read as follows : Items Categories of eligible importers 1(i) Raw materials, components and consumables appearing in Appendix 6, List 8, Part I and Part II Actual Users (Industrial) 24. ....
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...., CONSUMABLES, SPARES AND TOOLS ALLOWED FOR IMPORT UNDER OPEN GENERAL LICENCE BY ACTUAL USERS AND OTHERS FOR ACTUAL USE/STOCK AND SALE AND AGAINST EXIM SCRIP/ADDITIONAL EXIM SCRIP". 32. The use of the word "and" is disjunctive. The phrase "Actual Use/Stock and Sale" similarly envisages permissible alternatives. 33. What the Government was therefore seeking to effect by the first Public Notice was a liberalisation of the import in respect of certain items which has been sought to be defeated by the respondent authorities by ignoring the amendments. The view taken by the Customs Authorities is not even a possible view. It is difficult to see what other amendments the Central Government could have issued to clarify the position further. 34. It appears from the documents produced before this Court by the respondents, that the Collector of Customs had sent a fax message to the Chief Controller, Imports and Exports, New Delhi for a clarification of the matter. The fax message requested for a clarification by return of telex. The date of the telex is not given. It has also not been disclosed to this Court whether the clarification was given by the CCI & E and if so, what the natu....