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TMI Blog1986 (6) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... atter are that M/s. Raymond Woolen Mills Ltd. (hereinafter referred to as Raymond ) imported on 16-1-1978 60 drums oxytetracycline hydrochloride and these goods were sought to be cleared under two Import Licences Nos. 2797359 2797752 issued on 10-8-1977 17-8-1977 which in the opinion of the Customs did not cover the goods. The Customs alleged that the Indent for the goods imported having been placed sometime during the beginning of Nov., 1977 and the L/C for the item having been opened only on 14-11-1977, the date of amendment of description of goods in the L/C licences produced for clearance were not valid for the subject importation in terms of para 106(i) of I.T.C. Policy Book (Vol. II) for AM 78, read with I.T.C. Public Notice No. 78-ITC(PN)/77, dated 27-9-77. This Public Notice placed restrictions on import of Oxytetracycline which till then could be imported without such restrictions. It is also alleged that the Indent No. 41018, dt.2-9-1977 for the single item Oxytetracycline produced was a fabricated indent prepared sometime during Nov.1977. It is also alleged that the goods were under-valued and the importers sought to evade payment of Customs Duty amounting to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght conferred by import licence which was issued well before the issue of the Public Notice. He referred to Clause 3 of the conditions of licence which was as follows :- This licence shall also be subject to the conditions applicable to the class of importer concerned under the import policy for Registered importers and as contained in Chapter V of the relevant Import Trade Control Hand Book of Rules Procedure in force on the date of the issue of the licence, or any amendments thereof made upto, and including the date of issue of the licence, unless otherwise specified. (emphasis supplied) 6. The ld. counsel submitted that in the light of this clause only conditions applicable and in force on the date of the issue of the licence or any amendment thereof made up to and including the date of issue of the licence can be enforced and not conditions and amendments which were brought in after the issue of the licence. He argued that only those conditions which appear in the Policy Book AM 78 were enforceable and not the contents of the Public Notice which came into force later. The ld. counsel submitted that vested rights could not be taken away and that Import Policy was not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the condition, according to the ld. SDR, referred to the date of issue of licence and orders issued subsequent to such dates. He placed reliance on the words unless otherwise specified appearing in the condition of the licence and submitted that a Public Notice is, as such, binding. Referring to the Case Law cited by the appellants, Shri Ajwani argued that the Case Law related to the years 1962 1963, but the condition might have changed later. Referring to the order passed by Sh. J. Dutta in his capacity as Member of C.B.E.C. in M/s. Arvind Exports Pvt. Ltd., Shri Ajwani, SDR submitted that the same authority in other orders changed his views, (however, Shri Ajwani did not cite any particular order in which the changed views were expressed by the said authority). Because of the change, Shri Ajwani submitted that the persuasive value of the order is diminished. 10. Referring to A.I.R. 1968 S.C. 718 cited by the appellants, Shri Ajwani countered that the Public Notice in question was issued by the Textile Commissioner and not by the C.C.I.E. He further submitted that Supreme Court s powers were considerably wider than those of CEGAT. Similarly, the judgment in AIR 1971, 704 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the conditions printed in the licence is to ensure that goods importation of which is prohibited under any other law are not imported on the strength of the licence. The wording of the conditions itself refers to other prohibition or regulation . Examined in this light, both the conditions can be constructed and construed harmoniously and the position appears to be that while all conditions in force on the date of the issue govern the licence, later conditions did not govern it. We have in this context examined the claim of the appellants that a Public Notice is not binding. We reject this argument straightway as the Public Notice is issued by the same authority who issued the Policy Book and the appellants having accepted to follow the Policy Book cannot very well say that a clarification amendment or other change in the policy issued in the form of a Public Notice is not binding. While there can be a question whether a Public Notice would have retrospective effect, we do not have any doubt till that a Public Notice is binding. 12. In this context we have carefully referred to the Case Law cited by the appellants. The Board s order passed by Shri J. Datta on 23-12-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is an import in contravention of an order prohibiting or restricting it whereas in the instant case before the Supreme Court, the Collector was proceeding to confiscate on the ground that a condition of the licence under which the goods have been imported had been disobeyed. This judgment is not of direct relevance to the present proceedings. In A.l.R. 1971 S.C. 704 (supra), the Supreme Court held that the Public Notice issued by the Steel Controller was not retrospective. In that case, the appellants before the Court obtained two licences for importing steel sheets in June, 1962 and imported the same. The Supreme Court (para-5) observed that the condition that the sheets imported must be of prime quality" was imposed for the first time by the Iron and Steel Controller s Public Notice, dated December 6, 1962 and could not obviously apply to the sheets imported under the two licences which were issued earlier." In para-6 of the same order, the Supreme Court observed as follows :- The Officer who heard the revision applications on behalf of the Central Government was of the view, and rightly, that the Public Notice No. l/l-S/62, dated December 6, 1962 of the Iron and Steel Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive portion says : In the existing entry No. 368, the following shall be added at the end.... (emphasis supplied by us). The words added ( Palm stearing/palm kernel oil ) were simply not there in entry No. 368 before the entry was amended by Notice 48 of 9-12-1980 and were added by the notice. 8a. Apart from what is stated above, the ld. counsel for Patel Impex has cited certain judicial pronouncements which support his contention. In the case of Bharat Barrel and Drum Co., the Supreme Court (AIR 1971 S.C. 704) held with reference to a Public Notice, dated 6-12-1962 issued by the Iron and Steel Controller (which, for the first time, imposed a condition that steel sheets imported must be of prime quality ) that the notice could not obviously apply to the sheets imported under the Licences which were issued earlier. It had no retrospective operation. Similarly, the Supreme Court in the Cannanore Spinning Weaving Mill case - 1978 E.L.T. (J375) ECR C 334 S.C. interpreting the effect of Central Government Notification of 16-2-1963 (which defines hanks ), held that it had not retrospective effect and that the said definition could not be made use of for the purpose of Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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