1992 (12) TMI 116 - HC - Customs

Summary

Issues Involved
1. Whether the petitioner could import Olive Oil without a license under the Import and Export Policy.
2. Interpretation and effect of the Public Notice and Order dated 29-2-1992.
3. Classification of Olive Oil as "consumer goods" or "crude drug."
4. Applicability of the Import and Export Policy, 1990-93 vs. 1992-97.
5. Jurisdiction and appropriateness of the writ petition under Article 226.
6. Estoppel and binding nature of departmental representations.

Detailed Analysis

1. Import of Olive Oil Without a License
The primary issue was whether the petitioner could import Olive Oil without a license under the Import and Export Policy. It was undisputed that under the 1990-93 Policy, Olive Oil was importable under Open General Licence (OGL) as a "crude drug." Appendix 6 of the Policy listed items importable under OGL, and Olive Oil was included as "Zaitun (Tel-oil)" in List 4.

2. Interpretation and Effect of Public Notice and Order Dated 29-2-1992
The Public Notice dated 29-2-1992 issued by the Chief Controller of Imports & Exports provided for a Negative List of Items comprising restricted, banned, and canalized items. It stated that all items not included in the Negative List would be freely importable, and accordingly, several appendices, including Appendix 6, were deleted. The Order dated 29-2-1992 rescinded the Import Trade Control Orders (OGL) and established a Negative List of items. The court held that the intention of the Public Notice was to make goods importable under OGL freely importable, and the deletion of Appendix 6 indicated that items listed therein, including Olive Oil, were freely importable.

3. Classification of Olive Oil as "Consumer Goods" or "Crude Drug"
The Customs Authorities classified Olive Oil as "consumer goods," making it a restricted item under the 1992-97 Policy. However, the petitioner argued that Olive Oil was classified as a "crude drug" under the 1990-93 Policy and should remain freely importable. The court found that the interpretation by the Customs Authorities was unreasonable and contrary to the intention of the Import & Export Authorities. The court held that Olive Oil, listed in Appendix 6 before its deletion, became freely importable.

4. Applicability of the Import and Export Policy, 1990-93 vs. 1992-97
The petitioner contended that the shipment date was the relevant date for determining the applicable policy, citing a Supreme Court decision. The Customs Authorities argued that the importation date was relevant and that the 1992-97 Policy applied. The court found that the Public Notice and Order dated 29-2-1992 made Olive Oil freely importable, and the question of the relevant date was immaterial.

5. Jurisdiction and Appropriateness of the Writ Petition under Article 226
The Customs Authorities argued that the petitioner should have pursued an appeal under Section 128 of the Customs Act, 1962. The court noted that there was no written decision from which an appeal could be made and that the rule of alternative remedy is a discretionary rule imposed by courts. The court held that it was appropriate to entertain the writ petition as it involved pure questions of construction and interpretation.

6. Estoppel and Binding Nature of Departmental Representations
The petitioner relied on a circular dated 15-5-1992 from the Import & Export Authorities, clarifying that items previously importable under OGL were freely importable under the 1992-97 Policy. The Customs Authorities argued that there was no estoppel against statute. The court held that the circular was a decision of the Import & Export Control Authorities and should be followed by the Customs Authorities. The question of estoppel did not arise as the circular was not contrary to any law.

Conclusion
The court directed the respondent authorities to allow the clearance of the imported Olive Oil upon payment of customs duties, rejecting all contentions of the respondents. The court refused the prayer for a stay of the judgment and allowed parties to act on a signed copy of the operative part of the judgment.