1990 (11) TMI 145 - SC - Customs

Whether Palm Kernel at the relevant time could be imported under OGL as done by the appellant or it could not be done as the same was canalised item which could have been imported through STC or Hindustan Vegetables Oil Corp., New Delhi ? What duty could be imposed in the facts and circumstances of the present case? Held that - Since Palm Kernel was not included within Palm seed the Customs authorities had no legal justification to confiscate or impose redemption fine, or penalty, as the goods had already been shipped on various dates i.e. on 26-5-1987 and 25-7-1987. It is no longer in dispute that if the Palm Kernel was not a canalised item before 27-7-1987 then it could have been imported under OGL before that date. The crucial dates in this regard are 26-5-1987 and 25-7-1987 when the goods were actually loaded in the ship and not the date of arrival of the ship in the territorial waters of India. The High Court has overlooked that on 15-10-1987 the petitioner had only applied for warehousing of the goods on the direction of Division Bench of High Court. The Single Judge had passed an interim order for clearing the goods after payment of customs duty, but the department went in appeal and the Division Bench by its order dated 18-9-1987 directed the imported goods to be kept in a bonded warehouse or any other warehouse approved by the Customs authorities and until further orders the appellant was directed not to take delivery of the same. The appellant submitted the bills of entry on 28-1-1988 and admittedly no duty was payable on that date. Moreover where goods imported are kept in a warehouse under a bond, the date of arrival of such goods in India is not relevant for determining the duty, therefore the High Court committed error in holding the appellant was liable to pay duty as in force on the date of arrival of goods. There is no dispute that the remaining goods were also stored in a private warehouse and the appellant had filed the bills of entry and complied with all the required formalities for debonding and clearance of the goods on 28-1-1988, therefore the appellant was entitled to an order cancelling the licence of the private warehouse enabling it to remove the goods. There is no valid reason as to why the same procedure should not have been followed in respect of the remaining goods in respect of which the bills of entry were filed on 28-1-1988 for debonding and clearance of goods. Merely because the Officer failed to discharge his duties by making illegal demand for deposit of redemption fine, the appellant could not be held liable to pay duty. The appellant is therefore entitled to the delivery of goods without paying any duty as on 28-1-1988 no duty was payable on the goods.

Summary

Issues Involved:
1. Import Policy
2. Duty Payable under the Customs Act, 1962

Issue-wise Detailed Analysis:

1. Import Policy:

Facts and Contentions:
The case involves the import of Palm Kernel by the appellant under the Open General Licence (OGL). The Government of India's Import Policy for 1985-88 canalised certain items, including Palm seeds, through the State Trading Corporation (STC) or Hindustan Vegetables Oil Corp. The appellant contended that Palm Kernel and Palm seeds are distinct items, as supported by various authorities, including the Central Plantation Crops Research Institute and M/s. Oil Palm India Limited. The Chief Controller of Imports & Exports issued a Public Notice on 27-7-1987 canalising the import of "any other material from which oil can be extracted," which included Palm Kernel.

Judgment:
The Supreme Court agreed with the High Court's view that Palm Kernel and Palm seeds are different commodities. The notification dated 27-7-1987 was an amendment to the earlier policy, indicating that Palm Kernel was not a canalised item before this date. Consequently, the import of Palm Kernel under OGL before 27-7-1987 was lawful. The Customs authorities had no legal justification to confiscate the goods or impose a redemption fine and penalty.

2. Duty Payable under the Customs Act, 1962:

Facts and Contentions:
The appellant argued that the duty should be determined based on the date of actual removal from the warehouse, which, according to them, should be 28-1-1988 when the ex-bond bills of entry were filed. The Customs authorities contended that the duty should be based on the date the goods entered the territorial waters of India, i.e., 2nd/3rd October 1987. The duty rates changed from 105% to nil on 4-12-1987, back to 105% on 29-1-1988, and then to 245% on 1-3-1988.

Judgment:
The Supreme Court held that the term "actual removal" in Section 15(1)(b) of the Customs Act means the physical removal of goods from the warehouse. The duty applicable is the rate in force on the date of actual removal. The Customs authorities' wrongful detention of goods and the imposition of redemption fines and penalties were deemed illegal. The appellant was entitled to remove the goods on 28-1-1988 when no duty was payable. The Court directed the Customs authorities to refund the amount of Rs. 50 lacs lying in deposit towards redemption fine and personal penalty within one month, without any interest, but with 15% interest per annum if not refunded within the stipulated time.

Conclusion:
The Supreme Court dismissed the appeal filed by the Union of India and allowed the appeal filed by the appellant, M/s. Priyanka Overseas Pvt. Ltd., directing the refund of Rs. 50 lacs and holding that no duty was payable on the goods as of 28-1-1988. The parties were directed to bear their own costs.