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TMI Blog1986 (7) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... was no dispute regarding this fact. Shri Banatwala submitted that the appellants imported 1000 M/tons of copra from zanzibar earlier under bill of entry no. 1933/10, dated 1-3-1979. On 10-3-1979 there was fire in the Bombay Docks and a quantity of 520.304 M/Tons of copra was completely destroyed in fire. The Appellants claimed the insurance against this loss amounting to Rs. 20,09,461/- and this claim was passed by the insurance company. Against this loss the Appellants imported the present consignment and sought its clearance under OGL No. 4. The consignment of copra weighed 348.52 M/Tons. The Asstt. Collector accepted the Appellants claim for the clearance of the consignment under OGL No. 4 and out of 7,990 bags imported under OGL No. 4, 6,180 bags were cleared by the Appellants. Thereafter they received a show cause notice from the Collector exercising his powers of suo motu review of the Asstt. Collector s order under old Section 130 of the Customs Act, as the Collector held that the Asstt. Collector s order was bad in law. The Appellants sent a reply to the show cause notice issued by the Collector. But the Collector did not accept the explanation offered and passed the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aseology of OGL No. 4 was analogous to the phraseology of OGL in Appendix 10. The OGL in the Appendix 10 had been interpreted by the Bombay High Court in the aforesaid case. He drew my attention to page 10 of the judgment, Condition No. 22 of the OGL No.4 was the same, as condition No. 24 of Appendix 10 in the policy for the year 1981-82. By issue of a public notice dated 5-6-1981, the Government canalised the import of animal tallow through the State Trading Corporation. The Petitioners before the High Court had imported animal tallow on the basis of licences issued to them earlier to the date of the public notice dated 5-6-1981. The High Court interpreted the provision in para 5 of the judgment and held that the prohibition did not apply to licences issued earlier. Shri Banatwala submitted that a similar interpretation should be made of OGL No. 4 in the present appeal and that the Appellants should be held as eligible for import of the replacement goods. Shri Banatwala submitted that in this view the importation was valid and the Collector s contention that the imports offended the restrictions under the Imports (Control) Order was not correct. In the aforesaid view, the Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, who would examine these in the light of general provisions set down in Chapter 16 of the Import Policy for the year 1980-81. Chapter 16 of the policy dealt with import of gifts. But this was not relevant for the present purpose. So far as the import of copra was concerned the same. was canalised for import through the State Trading Corporation under Appendix 9 para 5 of the Policy for the year 1980-81. Shri Pal therefore submitted that in view of the aforesaid requirements I.T.C. licence was necessary for permitting the clearance of the consignment of copra and that its clearance under OGL No. 4 could not be allowed. Shri Pal further submitted that OGL No. 4 was a general provision while the requirement of I.T.C. licence was specific for the clearance of the goods as per para 344(3) of the Handbook. Shri Pal further contended that the specific provisions would over-ride the general provisions of the policy. The earlier consignment was imported by the Appellants as actual users under OGL in Appendix 10 of the Policy for the year 1977-78. But the import being canalised during the relevant policy year when the present consignment was imported, the clearance of the consignment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import was in order and therefore the Collector s order was not legal or proper. So far as the objection raised by the SDR in respect of the Collector s order was concerned, Shri Banatwala argued that OGL No. 4 was a complete code and otherwise the Supreme Court s judgment in AIR 1972 SC 935 for giving vested rights to the importers would not apply. The Supreme Court s judgment dealt with the effect of paras 174(5), 176 and 231(3) of the Policy Book. So far as the Punjab and Haryana High Court judgment in the case of Oswal Mills 1984 (18) E.L.T. 694 was concerned, this was with reference to the implications of transitory provisions in para 231 which invalidated the R.E.P. licences. The final Chapter of the Policy for the year 1980-81 contained the transitory provisions. He drew my attention to para 215(1) on page 42 of the policy 1980-81 and submitted that these were not relevant for the present purposes. The Punjab and Haryana High Court was dealing with the interpretations of these provisions which appeared as para 222 (3) of the policy 1981-82. The Punjab and Haryana High Court in the judgment did not examine the provisions of OGL No. 4. He, therefore, submitted that the Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Laws, Drug Control Act, At Act, Explosives Act, Excise Act, etc., as examples of prohibitions under other laws. But this paragraph in the Handbook is of a clarificatory nature and is to the effect that an import licence issued is without prejudice to the operation of other prohibitions or laws, to which the imported goods may be subjected. In that context the illustrations of prohibitions under the other acts are given. The import licences, however, do not bear any such endorsement. On the other hand, OGL No. 4 is a specific provision enacted under the Imports and Export (Control) Act, 1947. If a condition of this OGL stipulates that it is without prejudice to the application of any other prohibition or regulation, it could mean only a prohibition or regulation under that act or the Imports (Control) Order only. It would be reduntant to incorporate this provision if it is to be implied that the prohibitions envisaged are those which are not under this act but under other acts. On the other hand, it is seen that OGL permits imports of replacement goods within 24 months or even a longer period if a warrantee permits such a period. It is well known that the import policies are chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort is banned by the Imports (Control) Order, but because their import is not allowed by organisations other than the STC as per Condition No. 13 of the OGL. In other words, the matter involves interpretation of the condition of the OGL and not an interpretation as to what is permissible on import or otherwise. Shri Banatwala as also Shri Pal have relied on various judgments of the Supreme Court and the High Courts. These are mentioned in their respective submissions. By and large, they deal with validity of imports under licences or validity of imports under OGL in Appendix 10 wherein the import policy either subsequent to the placing of the order or at the time of importation of the goods has undergone a change. The judgments relied upon by the two sides are not specifically relating to importation under OGL No. 4. Though, therefore, they have validity by analogy only, they do not have a direct bearing on the issue under question. However, I am inclined to agree with the learned SDR s submission that the judicial pronouncements stipulate that if the goods are either prohibited or restricted at the time of their import, the benefit of clearance either under the OGL or a licence ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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