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TMI Blog1984 (12) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner. He gave, however, an option to the petitioner to redeem the goods on payment of a fine of Rs. two crores in terms of Section 125 of the Customs Act. 2. Section 11 of the Customs Act, 1962 empowers the Central Government that if may by Notification in the official gazette prohibit either absolutely or subject to such conditions as may be specified the import or export of goods of any specified description. Section 111(d) of the Customs Act says that any goods which are imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation. Section 112 provides penalty for importation of goods which are liable to confiscation and says that such a person shall be liable also to a penalty not exceeding five times the value of goods or Rs. 1000/- whichever is greater. Sec. 125 permits the officer ordering confiscation to give to the owner of goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Sec. 12(1) of the Customs Act lays down that duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act. Sec. 2 of the Customs Tarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough revalidated subsequently). 7. Appendix 9 Para 5 (April 1980-March, 1981) provides that in the case of the various Items mentioned therein import will be made only by the State Trading Corporation of India on the basis of foreign exchange released by the Government in its favour. The Items mentioned therein are : - 1. Coconut oil. 2. Copra. 3. Groundnut oil/seeds. 4. Palm oil (all types including palm ole in) 5. Rapeseed oil/seeds. 6. Safflower oil/seeds. 7. Soyabean oil/seeds and 8. Sunflower oil/seeds. Appendix 10 to the said policy enumerates the Items allowed to be imported by the actual users (industrial) under the Open General Licence (OGL) and the conditions mentioned therein. 8. Item No. 1 reads; Raw material, components and consumables (non-iron and steel Items) other than these included in the Appendix 9. 9. The petitioner helds a letter of authority from an export house. The export houses are entitled to additional licences in terms as mentioned in Para 177 of the Import Policy. In terms of Para 177(5) of the Import Policy the additional licence will also be valid for import of raw material components and spares (excluding those covered by Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il were canalised Items and could only be imported by the STC. 3. Was the Order of Collector passed under extraneous influence and at the instigation of an outside authority? 4. Was the Collector bound to decide in accordance with the order of the Central Government dated 31st March, 1981, if so can the petitioner insist on writ of mandamus being issued compelling the Collector to apply the law laid down by the Central Government even if this Court holds a view contrary to the view taken by the Central Government. In this connection would not the objection of alternative remedy be a total bar to the seeking of this remedy of mandamus or Certiorari? 5. Is the petition not maintainable on the ground of alternative remedy and lack of territorial jurisdiction? 16. Now coconut oil does not as such find mention in the Schedule to the Customs Tariff act or in Schedule 1 to the Import Control Order. But it is not disputed that coconut oil is covered by Entry 15.07 of Schedule to Customs Tariff Act and schedule to the Import Control Order. In Import Policy 1980-81 Appendix 9 Para 5 the Items which can be imported by STC alone, amongst other oils coconut oil as such is mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er things but it cautioned that in interpreting Item in a statute like Sale Tax Act resort should be bad not to the scientific or technical meaning of such terms but to their popular meaning or the meaning attached to it by those dealing in them. It then went on to observe :- Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include charcoal in the term coal . It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal. 19. Dunlop India Ltd. v. Union of India and others - 1983 E.L.T. 1566 (AIR 1977 SC 597) to which reference was made by Counsel for the petitioner is of no avail. There the goods imported was V.P. Latex by the appellant who were manufacturer of automotive tyres. The Central Government held that the V.P. Latex was synthetic resin and was to be classified accordingly, while the petitioner s case was that it was liable to duty under Item No. 39 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil mentioned in the import policy being sought to be restricted to merely edible variety of coconut oil. 24. Reference to H.R. Syiem v. P.S. Lulla (LXXII 1969 Bombay Law Reporter 534) is a case in which it was held that black Insulating Tapes which are included in electric insulation s in column 2 of Entry No. 38 cannot be held to be adhesive tape in column 6 of the same Entry by the mere fact that they have adhesive capacity .not withstanding that the use of the said tape was for electrical insulation. It would be seen that the use of the electric insulation tape was taken to be the determining factor for giving a meaning to the word. In State of U.P. and others v. M/s. Indian Hume Pipe Co. Ltd. (AIR 1977 SC 112) the question raised was whether Hume pipes amount to sanitary fittings. The Supreme Court held that sanitary fittings would only be such as pipes or materials as are used in lavatories, urinales, or bath rooms of private houses or public buildings. It, however, accepted that even where hume pipe is used for carrying the excreted material from the commode to the septic tank that may be treated as sanitary fittings. It is important to note that the mere fact that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Para 0.2 of the Indian Standard Specifications for Coconut Oil (Second Revision) shows the use of coconut oil both for edible and non-edible purpose, like in the manufacture of cosmetics, toilets. The requirements for various Grades are suitable for the foregoing purposes . Para 1.1 prescribes the standard which is the requirement for test of coconut oil used for edible and industrial purposes. Types and Grades are mentioned and shows refined Grade and raw Grade IA and IB are suitable for direct edible consumption while raw Grade 2 and other two Grades are suitable for industrial uses and not for direct edible consumption. Thus as per specification coconut oil standing by itself would include both edible and industrial variety of coconut oil. The" specifications by Indian Standard Institution has been accepted as furnishing very strong and uncontrovertibly support as to how an article is known to the consumers and commercial community (See Union of India and another v. Delhi Cloth and General Mills Co. Ltd. 1977 E.L.T. 199 (S.C.) = 1963 SC 791 Para 10). 26. Mr. Sen s objection that the reference to specification of Standard Institution is not permissible as no warning was gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued by Mr. Sen that the STC is a very big trader and as it has stated that the industrial coconut oil was not canalised with it, it must be accepted that the word coconut oil in 1980-81 Import Policy was restricted only to the edible variety. I do not agree. No importance can be attached to a suggestion in this letter that industrial coconut oil is not canalised with STC for more than one weighty reason. The authority of Chief Marketing Manager to speak for STC in an authoritative manner is not shown. Moreover, STC is not the authority at all for giving any interpretation about what Items are canalised. Thus in Chapter 20 of Import Policy 1980-81 dealing with classification and interpretation of the policy Para 202 specifically provides that in all other matters relating to actual users enquiries emanating from other persons i.e. Export Houses, selling agents, traders etc. as well as interpretation of the policy proper and the procedure, the person concerned may address the Chief Controller of Imports and Exports for necessary advice. Any interpretation of the Import Policy given in any other manner will not be binding on him or in law. (emphasis supplied). Para 199(3) also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted itself. The Entry in Appendix 9 describes palm oil (of all types including Palm oilene and Palm Stearin) because there are various kinds of Palm oils some of which are likely to be mis-understood as not being included in the general Item. Palm oil e.g. Palm oilene is product resulting from breaking up the Palm oil. Palm oil is refined. The liquid operation after refining is palm oilene, while the solid part is palm stearin. In that view it was evidently necessary to mention that the palm oilene will also be included in Entry palm oil. That Palm oilene and palm stearin are different commodities has been up-held by a special board of Central Customs dated 28-5-1982 wherein it noted that the Central Government had also held that Palm oilene had to be considered different from palm oil and it was for this reason that it was found necessary to qualify the Entry of palm oil by specifying of all types including palm oilene. The same situation does not apply to coconut oil because it is the same name, only the purpose is edible or industrial. The goods being known as coconut oil only. 31. Another reason given by the board in its order of 23-1-1981 for purporting to hold that coconut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e both edible and industrial variety it is not understandable by what process of reasoning the same Entry to be found in the Import Policy 1980-81 is sought to be restricted to only the edible variety. The argument of the petitioner has no force. Another argument in support of this contention was by relying on Import Policy for 1981-82, 1982-83, whereby the Entry in Appendix 9 Para 5 was to the effect In the case of the following Items, whether edible or non-edible, import will be made only by the State Trading Corporation ...... (i) coconut oil , The Suggestion of Mr. Sen and Mr. Rana is that because the word whether edible or non-edible are not to be found in the earlier policy of 1980-81 it necessarily means that the word coconut oil used in 1980-81 policy was restricted only to edible variety. I cannot agree. It is equally possible to say that as edible has been specifically mentioned in 1981-82 policy, the earlier Entry of 1980-81, was restricted to non-edible variety only. So this argument of seeking to exclude edible variety from 1980-81 can equally be utilised by the respondents to urge to the contrary. I cannot accept such an exclusion of industrial variety, when ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tems under OGL had no Entry of oils at all. Entry No. 1 Appendix 10 was broadly similar as was to be found in the import policy of 1980-81 namely raw-materials, components other than those included in the Appendices 3, 5, 8 and 9. It is clear thus that under 1979-80 policy coconut oil even for industrial purposes could not have been imported under Appendix 10 because the history of coconut oil shows that it was a canalised Item both for edible as well as industrial purpose right from 1978-79 policy and it also figure as such amongst the canalised Items in 1979-80. Sunflower oil and copra which in 1978-79 had been divided into industrial and edible purposes by being mentioned specifically in Appendices 8 and 10 respectively had ceased to be so included separately and were now included amongst the canalised Items in Appendix 8. It is significant to note that deordarised palm oil is excluded from Entry 51 in Appendix 8 (1978-79) of industrial purpose evidently because deordarised palm oil is for edible purposes and included in Item 8 Appendix 10 (1978-79). Similarly for 1978-79 Entry No. 8 clause 3 is of soyabean oil seeds and edible variety is under OGL (Appendix 10) while for indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner that coconut oil of industrial variety was outside the preview of canalisation and had imposed a penalty of Rs. 25 lakhs. The Central Board had, however, taken a different view by its order of 23rd January, 1981 and had set aside the order and held that coconut oil of industrial variety was not canalised through STC. The Central Government has noted in its order dated 31st March, 1981 that the Joint Chief Controller of Imports and Exports in the office of Chief Controller of Imports and Exports in his letter of 28th February, 1981 addressed to the Director of Customs, had pointed out that the information given by his letter of industrial crude coconut oil was not canalised was not correct. Thus as a doubt had been cast and more so in view of the decision of the Central Board dated 23rd January, 1981, the Government naturally thought it proper to remove any doubt and ..... to clarify that coconut oil always meant to include both edible and industrial variety and that is why it out of abandant caution clarified the same in the immediately next import policy of 1981-82. Thus there was a pressing need to clarify the position. It is not correct, as the Counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner in July/September, 1982 because it is common case that from 1981-82 onwards Appendix 9, Para 5 covers coconut oil whether of edible or industrial variety. 37. The petitioner is a holder of a letter of authority in respect of the licences on which the coconut oil has been imported. The licences were issued to certain export houses. They were originally issued on 4th November, 1980, 23rd January, 1981 and 15th January, 1981. The petitioner was appointed the letter of authority holder of the said licences by the authorisation letter of 24th February, 1981, 14th February, 1981 and 18th December, 1981. The licences were issued to the Export Houses. All the licences have an endorsement namely licensing period AM-1981. These licences have a further endorsement on the face of the licence to the following effect : This licence is granted under the Government of India order dated 17.9.1975 as subsequently amended issued under the Import and Export Act, 1947 and is without prejudice to the application of any other prohibition or regulations affecting the importation of goods which may be in force at the time of their arrival. 38. The licences also bears an endorse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods if they were not prohibited at the time of their arrival. The petitioner cannot rely for import of coconut oil on a licence which prohibits the particular Item of goods. The effect of this endorsement is to make it as if there is no licence for the import of coconut oil in September, 1982. It is not as if the petitioner could import coconut oil in September, 1982 but subject to certain conditions in fact he had no licence to import coconut oil at all when the goods arrived. It would be a case of import without any licence. 40. The same result follows from a perusal of Open General Licence No. 1/80, 1/81, 1/82, issued in April, 1980, 1981 and 1982 issued by the Central Government in exercise of the powers conferred by Section 3 of Imports Exports (Control) Act, 1947, by which it gave general permission to import into India from any country raw material, components, consumables by actual users (Industrial), subject - amongst others to the following conditions : Condition No. 1 : The Items to be imported are not covered by Appendices 3, 5, 6, 7, 8, 9 and 15 of the Import Policy, 1980-81. Condition No. 15 Such goods are shipped on through consignment to India on or before 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot ask for the benefit of OGL order to import certain Items but claim to be free from the fetters laid down in that very order. Rights under Para 177(5) to import kind of goods must be under the same constraint as that of an actual user (industrial). As the actual user (Industrial) itself could not import the coconut oil even of industrial variety from 1981-82 onwards because of the prohibition under OGL order issued under Section 3 of the Import and Exports Act, the petitioner as a holder of the additional licence could stand on no higher footing. 41. It was sought to be urged that the OGL order is merely a general permission but is not a prohibition. I cannot agree. Section 3 of the Import and Exports Act empower the Central Government to prohibit or restrict imports. An OGL order passed under the said Section by which it gives general permission to import certain Items but subject to certain conditions in effect prohibits the imports of these Items unless the condition mentioned in the said order are complied. Thus notwithstanding that even if during the currency of 1980-81 import policy industrial coconut oil could be imported, the same were prohibited in terms of 1981- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national trade but also on monetary policy, the development of agriculture and industries and even on the political policies of the country but rival theories and views may be held on such policies. If the Government decides an economic policy that import or export should be by a selected channel or through selected agencies the court would proceed on the assumption that the decision is in the interest of the general public unless the contrary is shown.." (See 1973 SC 2711 2716). The same view against holding of any vested right in the importer or invoking the plea of promissory estoppel has been accepted in Full Bench of this Court in Bansal Exports (P) Ltd. Others v. Union of India Others, 1983 Delhi 445 (Pr. 8, 10). Reference may with advantage be made to The Deputy Assistant Iron and Steel Controller, Madras and another v. L. Manickchand Proprietor, Katralla Metal Corporation, Madras 1972 SC 935. In that case appellant applied in 1968 for licence for stainless steel in December, 1968. But by the time it cams to be considered in 1970. The Item had become canalised. The High Court had granted the writ applying the import policy as the time of the application. The Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted under 1981-82 policy. If the main licence cannot authorise import of Items not included in Appendix 5 and 7 of 1981-82 policy, even if they were included in 1980-81 policy, by what logic can coconut oil even if read with Para 177(5) and Appendix 10 Item No. 1 of 1980-81 policy be imported in September, 1982 when from 1981-82 policy onward it had been included as a canalised Item. Consistency demands that Item must be importable at the time of arrival - not that they were importable in the previous policy. Export houses are not to be given a bonanza by being permitted to import Items which is prohibited to Actual Users (Industrial) for whose benefit the whole exercise of importation is done. 44. It will thus be clear that industrial coconut oil could not have been imported in September, 1982 even though it was in pursuance of a revalidated licence issued during 1980-81 because of the prohibition provided in the OGL order of 1980 that nothing in that licence shall effect the prohibition affecting the import thereof at the time when such goods are imported. As in September, 1982 coconut oil of all variety edible or industrial was a canalised Item it was a prohibited Item. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods. The court held that even if it was a breach of the condition of licence it was open to the authorities to direct prosecution but no order for confiscation of goods could be made. These cases are clearly distinguishable. In the present case even if we ignore the violation of Para 185(3) of policy, the petitioner would still have defaulted in terms of Condition No. 18 of OGL order of 3.4.1981, 1982 and an irrevocable letter of credit to have been opened in February, 1982, because the goods i.e. industrial coconut oil was imported in September, 1982 and letter of credit opened in July, 1982. The present is not a case where the import of coconut oil could be validly imported in September, 1982 but certain conditions had been imposed for the import and these conditions had been breached, like in the above Supreme Court decisions, which have no applicability. The present is a case where import of coconut oil of all variety is prohibited in September, 1982. The confiscation has been ordered because import has been made in contravention of a statutory prohibition. 46. The analogy of the breach of conditions of a licence cannot apply. It can only apply where there is a valid li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at clearance of imports made by the petitioner should not be made without getting prior clearance from the office of Chief Controller of Imports and Exports. Obviously in pursuance of these queries one Mr. Nagpal, Director of Customs, Ministry of Finance Customs by his letter Sated 25th October, 1982 wrote to Mr. Takhat Ram pointing out that it was not very clear whether the import by the petitioner would be covered by revalidated Additional licence and asking that matter be treated as most urgent as the goods had arrived at Kanda and were awaiting clearance. It is in this background that it is urged that the impugned order of the Collector must have been passed on the direction of Mr. Takhat Ram without applying his own mind. In support of the supposed influence of Mr. Takhat Ram reference is also made to the fact that the impugned order of the Collector dated 17th December, 1982 was also endorsed to Mr. Takhat Ram, Joint CCI E. In my opinion too much is being read in this ordinary communication sent by Mr. Takhat Ram. A reference to the letter of 4th September, 1982 would show that the Government apparently was worried that large quantities of coconut oil was being imported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... significant to note that the Collector does notice the order of the Central Board dated 23rd January, 1981, the very order which was affirmed by the Central Government on 31st March, 1981. No oblique motive can be attributed on this account. There was no intention to ignore a contrary decision because in terms of hierarchy the Collector is as much a subordinate authority to the Central Board as to that Central Government. For the reasons that the Collector could and did not follow the view of the Central Board were equally valid for not following the decision of the Central Government, as it had only affirmed the Board s view. No advantage was gained by the Collector by the inadvertent omission to mention Central Government s order. Mr. Rana still insists that these facts are sufficient to prove that the Collector s order is motivated. He says that in matters of malafide acts of public officials, onus of proof of malafide is not to be proved beyond reasonable doubt as held in M/s. Pannalal Binjraj and others v. Union of India and others, 1957 SC 397. But the Court nowhere laid down that the mere ipse dixit of malafide allegation made against the public officials discharges the onus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in the case of the present petitioners. Their case relate to another party. So that even technically speaking res judicata as such cannot apply because the parties are different. That is why emphasis was on estoppel by urging that the Collector is estopped from taking a view contrary to that taken by the Central Government. This argument which seeks to apply the principle of estoppel in revenue matters runs counter to the well established principles of law that there is no estoppel in the matter of tax laws which would also include proceedings under the Excise and Customs Act. In Palkiwala Law and Practice of Income Tax 7th Edition at Page 854 855, a series of decision have been summarised, the purport of which is: (a) that the doctrine of res judicata or estoppel by record does not apply to the decision of assessing officer; (b) a finding or decision by income tax in one year may be departed in a subsequent year; and (c) if a department wrongly arrived at a certain finding in a past year and assessee accepted it or if the department failed to protest against a wrong departure from the regular method of accounting in a prior year that can give the assessee no claim t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, refused it on the ground that the revision petition though accepted on 14-4-72, related only for the period upto March, 1968 itself. It was then the plaintiff filed a suit for the recovery of that amount which was decreed, in view of the fact that the Central Government had held that goods manufactured by the plaintiff, were not excisable. In my view the case was decided on its own facts and should not be held to be laying any broader view of applicability of estoppel in revenue matters, which If it did, with respect would have to be held to be erroneous view of law. Bharat Carpets case was noticed in J.K. Synthetics Ltd. another v. Union of India Others, 1981 E.L.T. 328, and it was commented that the contention on its basis runs contrary to the well established principle of law that the doctrine of res judicata or estoppel cannot apply in matters of this kind. Though the Bench held in that particular case that there was no change in the factual or legal position from the view which had been taken earlier by the Central Government so as to justify excise authorities to reopen the matter for subsequent years, the Bench accepted : The principle of res judicata or estoppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government failed to pass any order. In second revision the Central Government by its order. 21-11-64 directed the State Government to grant the mining lease. Inspite of this specific directed the State Government rejected the application by its order of 17-12-1966. Third revision was filed before the Central Government on 27-1-1967. On receiving the comment of State Government the Central Government rejected the revision, against which the appellant went to the Supreme Court which held that in view of the earlier decision by the Central Government dated 21st November, 1964 the State Government was bound to give the mining lease and in view of the earlier order of the Central Government the State Government s action in refusing to carry it out could not have been uphold by the Central Government subsequently even when no new facts were given. No such eventuality arises here. There is no decision of the Central Government in favour of the petitioner. Rather there is the decision by the Collector against him which I have held above was free to take any decision as it was not bound by the decision of the Central Government. 52. A very elaborate discussion on there being no estop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other branches of litigation in which such estoppels have to be considered; but in their Lordships opinion they are well established in their own field, and it is not by any means to be assumed that the result is one that should be regretted in the public interest. The contention to deny jurisdiction to the Collector to pass an independent order on its own must be rejected. I must also note that the Collector has given sufficient additional angle to justify consideration of the matter afresh, notwithstanding the earlier decision by the Central Government. 53. But even had I held that the Collector was bound by the decision of the Central Government dated 31st March, 1981, it could only have resulted in the matter being remitted to the Custom authorities for a fresh decision according to law, a course strongly opposed by Mr. Sen and Mr. Rana. Their plea was that if the binding compulsive nature of the decision of the Central Government is accepted the only inevitable course for this Court is to quash the Collector s order and direct the refund of redemption fine. I cannot agree. Had I agreed with the view of the Central Government on merits as put-forth by the petitioner the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners. In the present case the decision of the Collector was given on 20th December, 1982. By that time the amendments made by Section 50 5th Schedule of the finance Act, No. 2/1930 providing for an Appellate Tribunal had come into force. The petitioner thus could have filed an appeal under Section 129A to the Appellate Tribunal, which would have been free either to agree with the reasoning of order of Central Government of 31st March, 1981; it could as well take a contrary view and affirm the Collector s order. It could not have been urged by the petitioner if he had filed an appeal that the Appellate Tribunal was bound by the earlier view of the Central Government dated 31st March, 1981 because being an independent quasi judicial body there was no compulsion on it to agree with the earlier view of Central Government. Even if the amendment Act had not come into force, the Central Government hearing a revision under old Section 131 being a coordinated authority could take different view from the one taken by it earlier on 31st March, 1981, more so as the parties are different and which power was so clearly recognised in JK Sunthetic case. If hereafter the petitioners had followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal to be called the Customs Excise and Gold (Appellate Tribunal) Act. It is headed by a retired Judge of this Court. Section 129A provides for an appeal against a decision or order passed by the Collector of Customs. In the present case show cause was issued on 24-11-1982. As such appeal undoubtedly lay to the Appellate Tribunal - it is so even conceded by the petitioner. Section 130 also provides for a question of law to be referred to the High Court any question of law arising out of the order passed by Tribunal in appeal. Section 130E also provides for an appeal to the Supreme Court against any judgment of High Court delivered by a reference by it. Thus undoubtedly a regular appeal to an independence Tribunal being available the petitioner should be held incompetent for it is well settled : It is well settled that when an alternative and equally efficacious remedy is open to a litigant he should be required to peruse that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the court to issue a writ, but as observed by this Court in Rashid A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The petitioner thus by not going up in appeal, and at the same time urging, as noticed earlier that the Court should issue a writ quashing the proceeding initiated by the Collector on the sole ground of its decision being contrary to Central Government (without agreeing to examining the merits by us or either remitting it to Collector for reconsideration) is obviously taking the impermissible course of not availing a normal remedy of appeal and at the same time asking for quashing the proceeding without examination on merits at any forum. This portion itself shows how inequitable and improper has it been to entertain this petitioner direct. The decision of State of U.P. v. Mohd. Noon AIR 1958 SC 86, has no relevance. The petitioner was given full hearing. The argument that in the order of Collector reference is made to the meaning of coconut as given in Indian Standard Specification (which Mr. Sen says was not mentioned during the hearing) is an argument of despair. Reference by the Collector to the various publication for the meaning to be given to a word does not involve absence of hearing resulting in the order being a nullity as in Nooh s case (supra). That was a case of to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly. In this context I have kept in view the fact that the Division Bench entertained this petition in 1983 (after the Amendment Act had come into force) and did not dismiss it on that ground at that stage. Subsequently this matter was heard by learned Single Judge for days and the matter referred to a larger Bench. Earlier to the matter being heard by a Division Bench, the Supreme Court though in the first instance transferred the case to Rajasthan High Court for the expeditious hearing, stayed the order listed before Division Bench for regular hearing. Thereafter the Division Bench referred it to Full Bench. We heard the whole matter on merits as well. In that view it would serve no one s purpose if we were not to decide the whole matter but were to dismiss the writ petition on the ground of alternative remedy not having been availed of. In my view these special circumstances disincline me to dismiss this petition on preliminary objection, though I must emphasise that but for these special facts of this particular case, I would be strongly against entertaining any petition where party has not availed of the alternative remedy. I would, therefore caution against this case being tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storage charges, bank interest for a period of three months before the goods were got released. The petitioner claim to have sold these goods at that rate to M/s. Hindustan Lever etc. It is denied that the petitioners made huge profits. Counsel for the petitioner pressed us to consider various circumstances which according to him showed the bona fide belief of the petitioners that he was importing goods validly with a view to ultimately persuading us to hold that it was not necessary to order confiscation at all and that a mere warning or a token fine would have sufficed. Now I do not think that it is permissible for this court under Article 226 to interfere in the quantum of fine as this court is not sitting as a court of appeal. Even the Supreme Court in Indo China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. Collector, AIR 1964 SC 114, refused to interfere under Section 136 of the Constitution by observing that no question of principle or law is involved. It is relevant to note that in that case gold worth Rs. 23 lakhs was illegally imported in a ship. The custom authorities confiscated the whole gold. It also confiscated the ship though gave an option to the owner of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court held in these circumstances of the case that the company, a public sector organization acted in the honest belief that the company was not a dealer; hence no case for imposition of penalty was made out. That case has no relevant here where what is complained is the breach of prohibition to import Items in violation of the provisions of an economic legislation like the Customs Act. 62. In this connection one must make a distinction between proceedings for confiscation under Section 111(d) of the Act as in the present case and independent proceedings for penalty under Section 112 of the Act which have not been started against the petitioner. Question of bonafide belief and Mens Rea are irrelevant in proceedings under Section 111(d) of the Act, while they may have relevancy in proceedings for imposition of personal penalty under Section 112 of the Act, which may be described as quasi criminal. Confiscation proceedings under old Section 167(8) of Sea Customs Act 1978 (corresponding to Section 111(d) of the Act) provides for two kinds of penalties when contraband goods are imported into or exported from India; one is confiscation of the goods which is an order in rem an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P) Ltd. and Others, 1970 SC 1597, Para 13) or for that matter on the same analogy under the Customs Act. 64. It is indisputable that the proper implementation of the Imports and Exports Act is of immense signification to the national economy. Any loose or half hearted opening which may permit the provision of the Act to be violated can spell disaster for national economy. In such sensitive and other similar legislations Parliament inevitably make the liability absolute, for not to do so would gravely harm public interest. Thus contravention of Hire Purchase and credit sale agreement was held to be an offence even though the act was innocently done. Donovan, J. put it succinctly, There would be little point in enacting that no one should breach the defences against a flood and at the same time excusing anyone who did it innocently" (See Maxwell Interpretation of Statutes, 12th Ed. P. 127(96). Similarly the possession of a drug Regulation is an absolute offence. The regulation was said by Lord Parker, CJ. to be public welfare provision. If one considered the mishief aimed at alone, there was every reason for treating a provision such as this as a provision imposing absolute liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be passed under Section 111(d) of the Act. It is only thereafter that Section 125 of the Act permits the Collector to give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. But this Section does not make it obligatory on the Customs authorities when ordering confiscation, to give an option to the owner to pay a fine in lieu of confiscation but give them a discretion whether to do so or not. The order of confiscation would not therefore, be bad even though it had not given the petitioner an option to pay a fine in lieu of confiscation. Section 167(8) of old Act corresponds to Section 111(d) of the Act while Section 183 of old Act corresponds to present Section 125 of the Act. The Supreme Court in F.N. Roy v. Collector of Customs, AIR 1957 SC 648 has also laid down: Resort to S. 183 of the Sea Customs Act is not necessary at all to justify the order of confiscation made in such a case. Indeed S. 183 does not authorise confiscation. It assumes a confiscation authorised by other provisions of the Sea Customs Act and provides that on a confiscation being adjudged, an option to pay a fine in lieu of it shall be given. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea of the writ petitioner was that in terms of the particular Notification issued by the Government of India the petitioner was entitled to claim exemption from the excise duty on the article manufactured by him which it was claimed was mixed fertilizer. The High Court however held that the petitioner was not manufacturing the mixed fertilizer and was not entitled to claim any exemption. The said finding was up-held in the Supreme Court. However during the course of the argument, an argument was raised that another rival company had been given the benefit of exemption Notification for manufacturing the very same article as was manufactured by the writ petitioner and therefore not to give the same benefit would work injustice. Repelling this argument the Supreme Court observed : Mr. Setalvad made a grievance that the authorities concerned had Notification under similar circumstances to a rival company. If the grievance of the appellant is true, the appellant may no doubt have reasons to feel sore about it. We have however to point out that the grievance of the appellant even if it is well founded, does not entitle the appellant to claim the benefit of the Notification. A wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter make monetary gain from any illegal transaction of imports and/or exports. Because if apparent justification pleaded for import, which ultimately is found to be prohibited it can still result in monetary gain to the importer, there may be serious danger and risk to the success of the whole import and export policy with inevitable adverse economic consequences for the nation. The Import and Export Policy can work in the Public interest if it was make known clearly that whatsoever justification are pleaded may be sometime reasonable or even well intentioned, it will be no avail, and will not result in any monetary gain to the importer, once the goods are found to have been imported against a prohibition under the Statute. The label of bonafide belief for importation may only be relevant for not personally penalising him, but he cannot be permitting to make any profits out of illegal deal. The amount of redemption fine would and must necessarily be determined by these considerations. I do not however wish to pursue it any further because all these details of actual income, sale price and other expenses can only be shown by the petitioner to the authorities concerned, who has to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter to Hon ble the Chief Justice for constitution of a larger Bench. It would have been very helpful if Anand, J. was also with us, as he has passed a detailed referring order. Indeed, the statutory Rules and Orders of the Punjab High Court, Vol. V, as application to Delhi High Court, make the following provision in this regard. VOL.V-CHAPTER 3-B-PART B-JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT : Rule 8: Judge or Judges who refer a case shall ordinarily sit on the Bench which considers the reference. The Judge or Judges of a Bench by whom any question or case is referred shall ordinarily be members of the Division Bench or Full Bench, as the case may be, appointed to consider such question or case. 75. The petitioners, as an export house, had imported industrial coconut oil on additional licences with letters of authority. It is a raw material for manufacture of soap, shampoo etc. Admittedly, coconut oil , simplicitor, was a canalised Item of import through S.T.C. in A.M. 1980-81. The principal question in these petitions is whether in the relevant year 1980-81 it was the policy of the Government of India to canalise import of industrial coconut oi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture of soap in our factory, situated at Ghaziabad. One of the raw materials which is required for the manufacture of soap in our factory is industrial coconut oil. Presently we are in need of about 100 M.T. of coconut oil and will appreciate in case you are kind enough to allocate 100 M.T. of industrial coconut oil in our favour. The S.T.C. replied as follows, on 30th October, 1980 :- Subject: Import release of industrial coconut oil. We are in receipt of your letter dated 25.10.1980 in connection with your requirement of about 100 M.T. of Industrial Coconut oil for the manufacture of soap in your factory. In this connection we would like to inform you that S.T.C. is not importing coconut oil for manufacture of soap. Industrial coconut oil is not under our purview and is not canalised with us. We are importing and distributing edible oils for Vanaspati industries as well as for public distribution scheme." Central Government s order in revision : 78. Thereafter, the said sister concern imported industrial coconut oil of C.I.F. value of nearly two crores. Collector of Customs, Bombay did not clear the consignment but confiscated it. On payment of redemption fine of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commonly understood in common parlance or amongst the trading circles refers to the edible coconut oil. industrial Grade of coconut oil is an inferior type. If the industrial Grade of coconut oil is to be traded, it is described as industrial coconut oil. On the other hand, if the ordinary edible variety is traded, it is described as coconut oil. The Government in revision further held: it is to be considered that when the question is as to what is canalised, there is no better source for getting the information than the canalising agency itself. In the case of a canalised Item, if one has to find out what it meant by the term coconut oil, no source is better than the biggest trading agency, i.e. the S.T.C. The Central Government in revision, on this finding, confirmed the Appellate order of the Board and set aside the order of confiscation. The copy of this order dated March 31, 1981 was forwarded by the Special Secretary, Government of India, to Collector of Customs, Bombay, to the Board and the Chief Controller of Imports and Exports with an endorsement with reference to Shri Takhat Ram s O.C. No. XPC/3/11/80/5790 dated February 20, 1981. 82. I have quoted the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India on the classification of palmolein for custom purposes is concerned, there is no doubt that the decision is binding on the customs authorities. The intention of the Government to include palmolein palm seeds in the Entry palm oil, all types makes it clear that it was not the intention to include palm stearin in Appendix-9. The Board also held (on the basis of the evidence led before it) that there has been sufficient scope for confusion about the true meaning of the expression palm oil, all types, including palmolein and even the different Customs Houses were following different practices. On these grounds the Board held that the goods in all these cases should be treated as raw materials not canalised or prohibited. The order was pronounced by the Board on May 28, 1982. It may be noted that the decision of the Central Government in revision under Section 131(3) of the Customs Act dated 31-3-1981 holding that the Entry coconut oil, did not include industrial coconut oil, was also brought to the notice of the Special Bench of the Board. Directions from the office of Chief Controller, Export and Imports : 84. Inspite of the decision of the Central Government and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be covered by the re-validated additional licences produced by the importer who has contended that the import policy of 1980-81, against which these licences were issued would apply to these imports. A copy of the letter submitted by the importer explaining their view points is also enclosed. It is also not clear whether in revalidating the licences the fact that some of the Items like coconut oil etc. had since been canalised, have been taken into account. As the issue is not free from doubt and as your office has already advised the Customs Houses to furnish details as such import before Chief Controller of Imports and Exports for such action as considered necessary at their end and also for issue of appropriate advice to the Collector of Customs and Central Excise, Ahmedabad, as to the course of action regarding eligibility of the said import. Reference has also been made in the Chief Controller of Imports and Exports letter dated 4.9.1982, to certain reports that huge quantity of coconut oil are underway to India from Singapore and Philphines. The importer in this case, however, has claimed the goods to be of Sri Lanka original and has thereby claimed clearance at concession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the Oil Oil Seeds Sessional Committee comprised of eminent and therefore deserved acceptance. He relied upon AIR 1963 S.C. Page 791, 1980 E.L.T. 679 Delhi and 1980 E.L.T. 468 Madras. The Collector then held: In view of the above, I am of the firm opinion that the word coconut oil was it appeared in AM 1980-81 import policy Appendix-9 Para 51 would cover refind industrial coconut oil whether it is edible to not . The Collector then stated that the import policy AM 1981-82 wherein edible and non-edible varieties were specifically canalised goes to prove that non-edible variety was canalised during 1980-81 as AM 1981-82. This amplification was brought to make it abundantly clear and to remove doubts, if any, that oil whether edible or not can be imported only by canalised agencies. To interpret, that this clarification or amplification automatically imply, a contrary interpretation is uncalled for, and not sustainable in the light of the taw of the interpretation of statute. He thereafter examined different, licences. The first licence was dated 4.11,1980 revalidated on 28.6.1982 for a further period of six months. The Collector held that according to the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efused by this Court. The admitting Bench on 18th Jan., 1983 directed that the writ petition should be listed on 21st Feb., 1983 as No. 1 subject to part-heard. It is pointed out by the petitioner that on 12th Jan., 1983 i.e. after the import policy of 1982-83 was already announced, the Collector of Customs at Calcutta, allowed M/s. Jayant Oil Mills Pvt. Ltd., Bombay and Metro Exporters, Bombay to clear industrial coconut oil of 5000 M.T. each without any show cause notice or any punitive or penal action. This fact was not denied by the Counsel for the respondents during the hearing. II - Scope of enquiry by this Court. 86. Before going to the various grounds of challenge raised by the petitioner, the scope of our enquiry must be clearly delineated. The order of the Collector in question must be treated absolutely in the sense that it must stand or fall on its own. In early fifties the Supreme Court laid-down in Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 SC 16) (at p.18) that : Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e error, according to the petition or, is an error of law, apparent on the face of the record and going to the root of the jurisdiction of the Collector to decide the matter. Before going into this submission we must examine the nature and the import of the said two orders. The order of the Central Government was passed under the old Section 131(3) of the Customs Act. This is a revisional power. The Central Government had a final power under the Act to examine legality, propriety and compliance of policy by all the customs authorities subordinate to it under the Act. The Act gives finality to the decision of the Central Government. Since the Central Government itself lays down the policy and regulates import and export of the country, it must be presumed that the Central Government s decision correctly reflects the policy and national considerations involved in the implementation of export- and import policy. All import and export policy statements published in the form of public notice every year expressly state that the trade and business interest and (had been7) consulted and taken into consideration while framing the policy. It is, therefore, to be presumed that the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at rest? Strangely enough the Collector obediently followed the subsequent administrative instructions issued by the Joint Controller and passed an order contrary to superior Judicial Tribunals. What is true about the order of the Central Government is equally true about the order of the Special Bench of the Court. Why was the Special Board constituted? Because, there was a conflict of decisions amongst three different Collectors. The special Bench clarified the law and the policy. Constituting a larger Bench and a Special Bench is a well-known judicial method to creat consistency and discipline in interpretation of law and administration of justice. Will it be possible to say that after the Special Bench had clarified both the policy and the law, any Collector of Customs could take a decision in conflict with the policy and the law so decided? The order of the Central Government in revision and the Special Bench of the Board are orders Judgments in rem. They are the orders laying down law and policy for all for future cases. 91. The Counsel for the respondents submitted that the principles of estoppel and res judicata are not applicable. He has relied upon Abdul Gafoor s case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicata, are made applicable on the ground of natural justice, finality of decision, avoidable inconvenience and harassment to an assessee. In Sankaralinga Nader v. CIT (ILR 53 Madras 420), the Full Bench of the Madras High Court observed : If fresh facts come to light which on an investigation would entitle the Income-tax Officer to come to a different conclusion from that of his predecessor we think he is entitled to reopen the question. But if there are no fresh facts it is difficult to see how he can arbitrarily go behind the facts of finding of his predecessor. The same principles of natural justice or judicial dealing, which Court impose upon Income-Tax Officer, would prevent them capriciously setting aside the orders of their predecessors based on enquiry. Chagla, C.J. writing an opinion for the Division Bench of the Bombay High Court in N.A. Shah Co. v. Commissioner of Income-tax (1956-i 30 ITR 618) posed the question Can it be said that in the subsequent year when that vary question arises it is open to the Income-tax authorities at their sweet will to come to a conclusion which is contrary to the one arrived at in the earlier assessment ? The learned Judge then ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent or if further and fresh facts are brought on record or if the process of manufacture has changed or if the relevant entries in the tariff have undergone a modification or if, subsequent to the earlier decision there has been the pronouncement of a High Court or the Supreme Court which necessitates reconsideration of the issue, it can hardly be doubted that the department can take a different view and have the matter agitated right upto the Supreme Court, if necessary. But when there is no change at all and when the position is exactly the same, legally and factually, as it was on the earlier occasion then we think that the department should be restrained from capriciously changing its stand and inflicting unnecessary proceedings and hardship upon assessees." The learned Judge further observed : Thus, where the original decision is taken by an assessing authority, it is open to the higher authorities, who may consider it a wrong decision, to exercise their powers of revision or review under the Act and to set out the correct position. But if this was not been done or, if in a revisional proceeding for an earlier year, the ultimate revisional authority has taken a view i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignore the decisions of the superior authorities on this ground. If there are errors of law and the decisions of the superior courts are not considered by an intermediate superior authority, the Statute provides for the rectification of mistakes by the appex Tribunal. This principle of judicial administration is recognised by the Act since it has created hierarchy of Tribunals under the Customs Act. 96. But principles of estoppel, res judicata or stare decisis are old and traditional methods of ensuring justice and fair play in their application to administrative law. The higher judiciary in the democratic countries, where rule of law prevails, have now invented more direct and efficacious methods of securing fair play in the administration. Extension of the principle of preliminary estoppel in public law, the new contents put in the doctrine of locus standi; the extended frontiers of natural justice principle and the public interest litigation are efforts in this direction. This is the recent achievement of the Supreme Court through several land mark decisions. Res judicata and estoppel are like traditional and long winding routes to Mount Everest. The new developments provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Policy the Government considers the requirements of International and Internal Trade, agricultural and Industrial Development Plans, monetary and financial strategies. If this is the prescription for the superior courts with constitutional powers, can it be said with any logic or reason that a subordinate administrative tribunal can completely by pass the order of the Central Government in the revision? What is the expertise of such a subordinate tribunal, in these vital policy-considerations, as compared to the Central Government? The disastrous effects of the respondents submission can be further illustrated by an example. Suppose in the present case, the Central Government in exercise of its Revisional Powers had held that industrial oil was canalised through S.C. Could it be said, here inspite of this decision, the Collectors of Customs were free to hold that the industrial oil was not canalised and to permit clearance of the imports? Can it be said that the decision of the Central Government in revision in binding on the subordinate tribunals only when it favours the Government but not when it is against it? Such a submission would be patently violative of Article 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case, it is open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. The Court further held : Such refusal (by the Officer) is in effect a denial of justice and is further more destructive of one of the basis principles in administration of justice based as if it is the country on hierarchy of courts..... the result would be chaos in the administration of justice." Further, Section 131(3) is a general revisional power except that the exercise is suo moto. It is a judicial power. A sine qua non of judicial determination is, it is neutral about the result. To restrict the power to annul or modify" is to take away the essence of a judicial power. There is nothing odd in passing an order on the last day. Shri Sen, the learned Counsel for the petitioner has pointed out that number of judgments are delivered in the Supreme Court on the last day of the retirement of a Judge. Natural justice : 101. The second submission of the petitioner is that the Collector s order is in breach of the principle of natural justice and, therefore, a nullity. The submission is based on two facts. The Collector h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that industrial oil was covered by Appendix IX. I, therefore, hold that the impugned order of the Collector is a nullity and non est for violation of principles of natural justice. 102. The second limb of the argument is that the impugned decision of the Collector is not his own but taken at the dictate and behest of the Joint Controller and his office. The submission is that a decision of a quasi judicial tribunal is bad in law when he surrenders his judicial power in favour of the external executive agencies. In administrative law this amounts to violation of principle of natural justice. This submission of the petitioner was also not traversed by the respondents. No attempt was made to deny the factual positions for the legal inferences flowing from them. Confidential instructions were issued by Joint Chief Controller of Imports and Exports (Shri Takhat Ram) on 4.9.1982 to various Collectors of Customs directing them that before the clearance of the imported oil report should be made to him. After the goods were imported at Kandla port a telegram was sent on 5-10-1982 by the Collector according to the said secret D.O. The Deputy Chief Controller, on the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self to these aspects of the administrative instructions. If he had discharged his judicial duty judiciously he would have discovered that the said administrative instructions were not applicable and were irrelevant, apart from the fact that they were legally impermissible. I have, therefore, no hesitation in declaring the Impugned Order bad in law and non-est. The Collector in his affidavit has stated that he has taken independent decision. On the admitted facts stated above, it can only be said that the affidavit is bold but not truthful. Perverse order : 103. Let us probe this matter further. Has the Collector taken independent decision on the evidence before him? The submission of the petitioner is that the Collector s decision is perverse because it is not based on any evidence. Nor, it is an admitted position that the department had neither collected any independent evidence nor produced any before the Collector. The evidence as produced by the petitioner was as follows :- 104. As traders the petitioner and their sister concern had understood that industrial coconut oil was not a canalised Item. The Collector of Customs at Bombay and Kandla understood the policy in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record produced by the petitioner was not considered in arriving at the principal finding of fact. The evidence of the S.T.C. is thrown overboard by the Collector of Customs on certain (unreasonable) grounds which no judicial officer will do. He has misunderstood the submission of the petitioner in this regards. The letter of the STC was not produced as correct interpretation of the relevant Entry in the policy. It was only produced to establish a fact. S.T.C., as a trader and as the only canalising authority, was not importing industrial oil as at canalised Item. Its understanding on this matter was a question of fact. The Collector has referred to Para 202 of the Import Policy A.M. 1980-81 and Para 211 of the Import Policy A.M. 1981-82 and has held that the proper authority to interpret the policy was the Chief Controller of Imports and Exports and opinion of the S.T.C. was not binding. Even on this question the Collector ignored the fact that the said Paras of the Import Policy are in the nature of administrative directions. But under Section l3l of the Customs Act it is the Central Government in Revision, which has the final authority to interpret the Import Policy and law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Collector. 106. To sum up, the Collector has not considered the petitioner s evidence on record and the department did not produce any independent evidence to counter the petitioner s claim. The conclusions are such as no reasonable man would draw. The findings of fact and the Order of the Collector are perverse. They are, therefore, illegal and are set aside. Imposition of restrictions laid down by subsequent policies: Arbitrary. 107. But the respondent argued that the actual importion took place in September, 1982. By virtue of the endorsements on the licences at the time of their revalidation and by virtue of public notice dated 28-2-82, petitioner s import was illegal. In A.M. 1981-82 industrial coconut oil was also included in the canalised Items and the Collector held that the said public notice has a retrospective operation w.e.f. 3.4.1981. Now, it is an admitted fact that the Collector of Bombay had in May, 1981 allowed import of industrial oil direct. Actual import took place after the policy of 1981-82 came into operation, although the licences were for the year 1979-80. Petitioners own consignment was cleared at Kandla Port in July, 1981 i.e. after the 1981-82 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial function. Therefore, the order confiscating the goods should be a reasoned order. But the impugned order is not a speaking order. While imposing the fine of Rs. 5 crores the Collector has held that the petitioner had deliberately flouted the provisions of law. Neither the law nor the peculiar facts of this case are even attempted to be discussed before taking an extreme step of confiscation and imposition of an excessively heavy penalty. Proviso to Section 125 lays down that the fine in lieu of confiscation shall not exceed the market price of the goods confiscated, less, in case of the imported goods, the duty chargeable thereon. The Collector did not even investigate what was the market price of the goods imposted. This is a clear failure of the statutory duty by the Collector. The Collector also overlooked that the confiscation and penalty are penal provisions of the Statute. Such provisions are to be strictly construed and exercised with judicial discretion. The language of the Section is such goods shall be liable to confiscation . The language is not such goods shall be confiscated . Two things are indicated by this difference. The first is, that principal of ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, the licence on true construction, authorised the import of camphor B.P. According to the Government, camphor B.P. was not covered by Sr. No. 109 of Part IV of the I.T. Schedule but fell within Sr. No. 131 of Part IV and its import was not permissible under the licence. The facts of the case disclosed that other importers were allowed to import camphor B.P. under similar licences. The Supreme Court held: assuming that there is a doubt in the construction of the licence, the appellant against whom the penal provisions of Section 167(8) of the Sea Customs Act, 1878 are sought to be enforced is entitled to the benefit of the doubt. It may be recalled that the Joint Chief Controller of Imports and Exports, the appropriate authority for clarification of the Import Policy unique vocally stated in his letter dated June 5, 1959 that Camphor B.P. should be imported under the licence, and only on July 13, 1959 he cancelled this letter. Moreover, other importers who were allowed to import camphor B.P. under similar licences for the import of drugs and medicines. These facts show that even the Government authorities were in doubt about the proper import of the licence. .......... The Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable to infer that the extreme measure of confiscation and imposing heavy fine of Rs. 5 crores (the petitioner calls it a savage fine) was at the dictates of the Joint Controller, as no reasons whatsoever are assigned by the Collector. On this ground also the Collector s order has to be quashed. 114. I must add that the requirements of law of exercising the discretion judicially, to discuss the evidence and to give a reasoned order, giving benefit of doubt to the importer in matters of confiscation and penalty, are procedural safeguards against an arbitrary order. This means that even if the order of the Collector, can be justified, as a valid order on merits still the end result would be the invalidity of the order. In other words, once the order fails on the grounds stated above, it in not necessary to examine whether separately and independent of the said grounds of invalidity, the order survives. The contention of the petitioner to this effect, is valid and upheld. 115. I have already noted that the Collector has described the action of the petitioner as deliberate flouting of the provisions of law, without stating any facts or reasons. Brother Sachar has, however, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retary, (1923) 92 L.J. K.B. 791: It is, indeed, one test of belief in principles if you apply them to cases with which you have no sympathy at all. This principle was cited with approval by Vivin Bose, J. in S. Krishnan v. State of Madras A.I.R. 1951 S.C. 301. On the facts of this case and with these principles in view I hold that the Collector s order was bad in law and should be set aside. Violation of Fundamental Rights 116. The Counsel for the petitioner has then submitted that the Collector s Order violates the fundamental right of the petitioner guaranteed by Article 19 and Article 191(g) of the Constitution. He has also submitted that the order has resulted into illegal deprivation of property which is violative of Article 300-A of the Constitution. I must note here that the Counsel for the respondent did not make any attempt, at the time of the arguments, to meet this challenge. Brother Sachar has held that taxing events being different in different cases of importation, no discrimination can be pleaded. It is now well settled that violation or otherwise of fundamental rights is not to be decided by a text of an order or the letter of statute. It has to be judged on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade meaning of Coconut oil is not edible Coconut oil because only in small part of India Coconut Oil is used as an edible oil. It is then submitted that even if two interpretations are permitted, the one accepted by the department should not be rejected by the court, exercising the jurisdiction under Article 226 of the Constitution, unless the Court holds that the interpretation is so perverse as no reasonable man would do. (1962 (1) SCR Page 753, 1964 (7) SCR Page 62). In the Counter-affidavit the respondent has pointed out that in the case of Palm Oil after breaking up, the refined liquid is called Palm Oliein while the solid part is called Palm Stearin . According to the counter affidavit In such circumstances it must have become necessary to make it clear that Palm Oil enumerated at Sl. No. 4 in Para 5 covers all types including (Palm Olein . It is submitted that this is not, the case with Coconut oil. 118. This was all that was argued by the Counsel for the respondent. Brother Sachar has held that a common man uses coconut oil as Hair-Oil. Only a small minority in India uses Coconut Oil as an edible oil. According to the learned Judge the trade usage is in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary not that it was in fact necessary . But this vague assertion of the counter affidavit is also not correct. The special Bench of the Board has held that Palm Stearine is an Industrial Oil not covered by Appendix IX. It is not a Solid as stated in the counter-affidavit. 120. Now, it is a settled law that the such entries in the Tariffs are not to be interpreted on the basis of a scientific meaning or on chemical formulae. That meaning is to be accepted which is commonly understood. It may be an understanding of a common man on the street in some cases but it is more often the sense or the practice of the traders that is dicisive. In case of violation of Food Adultration Act, or Sales Tax Act or even an Excise Act, the understanding of the common man on the street, may be taken into account. Because, a mid-branded article or goods would directly affect a man on the street, not so in case of import of goods. Particularly, where the goods are industrial goods, meant as raw material for producing non-edible goods by another industry. Common man in the North, uses Coconut oil as a Hair-Oil. But not so, in the several Coastal states of India where Coconut is grown. It is ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not banned, was held by the Bombay High Court in H.R. Syiem v. P.S. Lulla (72, Bombay L.R. 534). Adhesiveness is only a secondary characteristic of the insulating tape. In Dunlop India Ltd. v. Union of India (AIR 1977 S.C. 597) the Supreme Court held that V.P. Latex, as known to trade and commerce in India and abroad, is raw rubber falling under Item 39 I.C.T. and not under residuary Entry 82(3) and did not attract higher customs duty under the residuary Entry. The court further held that on the evidence before the revisional authority (Central Government) no reasonable man could have come to a different conclusion. End-use test applied by the revisional authority was found to be irrelevant in the context. Hume Pipes which are generally laid underground and are extremely heavy are not used in private or public lavatories, urinals and bath-rooms, and hence are not sanitary fittings" in the popular sense. There was no evidence that they are used as sanitary fittings . The Supreme Court held that Hume Pipes were not liable to sales-tax as sanitary fittings under U.P. Sales Tax Act - State of U.P. v. Indian Hume Pipe Co. [AIR 1977 S.C. 1132 (1134)]. 124. These cases illustrate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also there was an apparent conflict between the two Items/entries in Part V, Schedule-1 to Import (Control) Order, 1955. Item 74(vi) related to spare parts in power driven agricultural machinery (parts of sprayers). Item 74(x) was a specific Entry regarding sprayers. The Department s contention that the goods in question fell under Item 74(x) was upheld by the Supreme Court on the same Principle. Similar question of conflict between the entries fell for consideration in Super Traders v. Union of India, 1983 E.L.T. 258 (Delhi), where the above decisions of the Supreme Court was relied upon. 127. It may be noted that all these cases relate to the conflict of entries/Items under different statutory orders. Secondly, there was no dispute so to the meaning of a particular Entry. These cases are not relevant for resolving the problem posed in our case. Here the question is whether coconut oil simplicitor as an Item of canalisation, would also cover non-edible industrial oil. There is no conflict of two entries. So also canalisation of edible oil has long history. Besides this, in the present case the higher quasi judicial authorities, namely, the Central Board and the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether Industrial Oil was also a canalised Item? In other words, how the trading community has understood entries in Para 5 of the Appendix IX, in A.M. 1980-81? The Entry in Para 5 reads as under : (1) Coconut oil. (2) Copra. (3) Groundnut oil/seeds. (4) Palm oil (all types including palm olein)/Palm seeds. (5) Rapeseed Oil/Seeds. (6) Safflower Oil/Seeds. (7) Soyabean Oil/Seeds, and (8) Sunflower Oil/Seeds. 130. Coconut oil, groundnut oil, mustard oil, and til oil are traditionally used as edible oils in India. It is only because of the shortage of seeds of these oils in India that new varieties of edible oil such as Palm Oil, Rapeseed Oil, Sunflower Oil, Soyabean Oil and Safflower Oil are being used nowadays as substitute of these traditional varieties of edible oil. Now, when these new varieties of oil are mentioned alongwith the traditional varieties for canalisation, how would the trading community understand Para 5? They are familiar with the shortages of edible oil and the consequent high prices. If is not natural for them to think that only edible oils are canalised? Para 5 further mentions copra and seeds of all the oils. What does it indicate? It is a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But in this case the position is somewhat different, inasmuch as there has been numerous changes in the policy over a considerable period, sometime excluding a variety, another time including the same or other varieties, but all with a view directed towards regulating the flow of edible oil into the country. There is, therefore, reasonable inference that the provision in Appendix IX are concerned with the edible variety of oil only . These findings are recorded because of conflict of opinion between various Collectors Board was thus fully aware of the experience of importation of oil in this country, and doubts expressed by some Collectors. I would prefer the considered opinion of the Board, (which regularly deals with such matters), to a mere textual interpretation. 132. I am not satisfied with bare statements, unsupported by any factual material, in the counter affidavit. The Board on the other hand, had asserted that the consistent policy throughout was canalisation of edible oils only. I have, therefore, looked to the Annual Reports submitted by the Ministry of Commerce to Parliament from 1977 to 1983. They are within the special knowledge of the respondent. These annual r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 5,000 M.T. in the beginning of the year to 32,000 M.T. (as of date). The Corporation is presently meeting 75% of the requirements of the vanaspati industry in the country. The prices which were fixed on November 1, 1977, are still being maintained for the vanaspati industry inspite of a rise in the domestic oil prices with a view to keeping a check on edible oil prices. Similarly, rapeseed oil prices for direct consumption through State Governments have been reduced by Rs. 1,000/- PMT since 25th August, 1977 and the same price is being maintained. The Corporation has, at present, a significant stock of one lakh MT at different distribution centres. (page 120). 135. Annual Report for the year 1978-79 expressly states that import of edible oil has been canalised through STC and the reasons for doing so. The report states, there was an increase in imports following the liberalisation of import policy and a need for augmenting the local availability of certain mass consumption Items which were in short supply ......... Subsequent quantities of edible oils had also to be imported to keep domestic prices under control. Steps have been initiated to reduce profressively the dependenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy was required to be reviewed - Indian Institute of Management, Ahmedabad was entrusted with the task of studying and suggesting new directions in canalisation and for achieving the objectives of Government in relation to price support, price stability etc. The report was submitted. (Report, 1977-78, Page xii). 3. The Report was accepted by the Government and S.T.C. was given a new role in price support and buffer-stock operations designed to achieve price stability of essential Items. (Report, 1978-79, Page 84). Steps have been initiated to reduce progressively the dependence on imported edible oil. One such measure was to canalise the import of edible oils through the State Trading Corporation. (Report, 1978-79, Page viii). 4. Pursuant to canalisation for the new socioeconomic goal the S.T.C. started maintaining buffer stocks, additional storing arrangement and distribution centres all over India. Prices of edible oil were kept under control 90% of the requirement of the Vanaspati industry was met by S.T.C. (Report, 1980-81, Page 109). 5. Huge quantities of edible oil was imported in spite of adverse balance of trade only because of shortage of edible oil in domesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Palm oil of all types is mentioned in O.G.L. Items. But its refined variety and palm oleine even for edible purposes is excluded from canalisation list. This shows that neither App. 8 nor 10 have any scientific or logical basis. The reasoning of the Respondent completely breaks down if we refer to Entry 57 Appendix 8 in 1979-80 Policy. All oils, now mentioned as canalised and OGL in our case, find place in that Entry. They are mentioned simpliciter without mention of edible or industrial use as in A.M. 1978-79 Policy. It shows that there is no consistent or continuing policy in regard to canalisation. Significantly, none of the oils are mentioned in O.G.L. Item in 1979-80 Policy. Here also the Respondent s reasoning fails. But a third pattern emerges in our relevant year A.M. 1980-81. Now, all the said oils are omitted from Appendix 8 or Appendix 10. They are included in Appendix 9, and the Entry speaks of canalisation through S.T.C. as O.G.L. Item. The only conclusion from these diverse patterns in regard to coconut oil is this. In 1978-79 it was not an O.G.L. Item while many other oils were in 1979-80 none of the oils, including coconut oil, was an O.G.L. List while in 1980-81 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 177(5) Additional Licences are given further facilities as under : The Additional Licences will also be valid for import of raw materials, component, spares (excluding those covered by App. 5) which have been placed under Open General Licences. Raw Materials, components and spares are the exact Items of App. X, Item 17. Thus by virtue of Para 174(iii) read with Para 177(5), petitioners were entitled to import raw material - in this case industrial coconut oil which is a raw material for manufacture of soap, shampoo etc. The source of entitlement is the said Paras App. X of policy for AM 1980-81 itself and no other. These continued in 1981-82 and 82-83. 141.The licences in favour of the petitioner were revalidated twice but each time for six months only. Letters of credit were opened on 31/7/1982. The goods arrived in Kandla Port on 10/9/1982. If policy of AM 1980-81 alone is to be applied, importation is within the revalidation period plus grace period of two months. 142. According to the Collector, however, by virtue of public notice dated 25-2-82. Import of O.G.L. Item by export houses shall be subject to condition that the shipment of goods shall take place w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for goods concerned. Export Houses are required to keep the period of shipment flexible. They have no control on the circumstance abroad. Shipments may be delayed because of short supply, strike etc. Para 199 of the Hand Book of Import Export procedure 1980-81 lays down that if revalidation is for a period not exceeding six months no conditions can be imposed on revalidation. Petitioner had requested revalidation for period of six months and not for a longer period at any time of revalidation. They were in fact validated for 6 months each time. Imposition of conditions was contrary to Para 199, also. 1979-80 Hand Book (para 7 of Chapter vi) permitted revalidation on condition of conformity with current Import Policy. This provision was deleted in the 1980-81 policy. Therefore, conditions of 1981-82 or 82-83 Policy cannot be imposed on licence under 1980-81 Policy. 143. Apart from these infirmities, the conditions of revalidation are arbitrary and unreasonable. In similar cases of importation, by petitioner himself and other traders, import was not held to be prohibited either by virtue of Para 185(3) or Public Notices. So also to hold that in AM 81-82 AM 82-83 industrial coc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory, cannot be treated as prohibitions imposed by the Import and Export (Control) Act, 1947 and Customs Act. Therefore, confiscation order are without jurisdiction. East India Commercial Co. (AIR 1962 SC 1893). This principle was reiterated by the Supreme Court in Civil Appeal No. 801 of 1984 decided on January 10, 1967 in the case of M/s. Jagannath Aggarwal v. Shri B.N. Dutta others, (AIR 1971 SC 170). See also Additional Collector Customs v. Best Co. 147.A distinction has been attempted by the Respondent between the conditions imposing restrictions rendering the licence (itself) invalid for their breach and conditions which put restrictions on the disposal of goods after their valid importation. It is argued that in the present case the licence itself was rendered invalid for importation in question and thus there was a breach of Section 111(d) of the Customs Act, 1962. To my mind, the distinction sought to be made by the Respondent cannot be read in Section 111(d) of the said Act. Section 111(d) reads - The following goods brought from a place outside India shall be liable for confiscation; - (d) Any goods which are imported or attempted to be imported or are brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was a prohibition to import industrial oil as raw material. There is no discussion or analysis of these provisions in the Collector s order. We are concerned with importation of raw material by virtue of Para 177(5) Import Policy for AM 1980-81 and corresponding provisions in AM 1981-82 Policy. It may be noted that Para 222(3) is not mentioned on the licences and, therefore, out of way. That sub-para creates a general embargo on importation of O.G.L. Items which were applicable in 1980-81 but not continued in Para 1981-82. Sub-paras (1) (2) speak of Items mentioned in App. 5, 7 and 26. Sub-para (1) states that only Items mentioned in said Paras and continued in 1981-82 can be imported. Sub-para (2) gives additional benefit of new Items added to the said appendices in 1980-81 Para 224(4) is an exception to Para 222(1) prohibition on Items otherwise than mentioned in the said appendices is released in case of raw materials, components etc. Para 222(4) reads : Additional licences issued to export houses during 1980-81 will also be valid within their overall value, for import of raw materials, components, consumables and spares (excluding the Items covered by App. 5) which can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reading of Import Policy Publication will show that Actual Users and export houses are treated as distinct and separate classes for the purposes of facilities of import. It is the chief anchor of foreign trade probably to vigorously promote exports and to have a favourable balance of trade. Chapter 18 of A.M. 1980-81 makes special provisions for Export Houses. Para 164 states that special facilities are given to Export Houses to strengthen their capacity in foreign trade and to build up a more enduring relationship between them and their supporting manufacturers. Para 174, amongst other things, include replenishment licences, (REP), additional licences and special permission for import of Items placed on the Open General Licence as special facilities for Export Houses. Para 177(5) permits additional licences for importation of raw materials which have been placed on Open General Licence for Actual Users (Industrial). It may be noted that such importation of raw material is not fettered by any conditions. As against this, Chapter VI of the said policy makes separate provisions for import of raw material, components, consumables and spares by Actual Users (Industrial). Para 23(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be imported subject to the conditions mentioned in the statutory O.G.L. Orders. A reference to statutory O.G.L. Orders is only for the purposes of finding out what Items are placed in the list of OGL. Condition No. 1 and No. 15 quoted above do not, as such, impose any prohibition. It is a general permission in regard to Items not covered by certain appendices and the period within which import should be made. I have already held that Industrial Coconut Oil did not fall within Appendix 9. It falls under Appendix 10. Condition No. 15 is obviously not applicable to revalidation s done subsequent to .the dates mentioned therein. If statutory O.G.L. Orders were applicable in the present case, there was no necessity to refer to conditions imposed on revalidated licences, or invoking Para 185 (3) of the said public notice to read prohibitions, as is done by the Collector. The submission of the Respondent that the import in present case was contrary to statutory O.G.L. Orders is untenable in law. 151. A licence is subject to the import policy of the year of issue and not subsequent policies and unless there are statutory orders to the contrary, O.G.L. statutory orders are not applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar to the relevant O.G.L. Entry in the present case. When the Entry in the exemption Notification refers to the refined oil, it only means that non-refined or raw oil would not be entitled to exemption. The meaning of entries does not change by acceptance or rejection of it by any private or even by Government. What is more important is not the textual meaning of coconut oil but the question of fact as to which variety was canalised in a given import year. This question of fact depends upon the evidence. What tariff is payable by an Item has no relevance to the question whether the Item was canalised or not. So also broad description of an Item in Tariff, such as 15.07, has a different purpose. In taxing statute the Legislature uses as general a language as possible, because there can be no taxation without law. Questions regarding importation and canalisation are decided on policy consideration at a given time. The submission of the respondent is rejected. V. Preliminary objections : 153. I will now deal with the two preliminary further considered objections. The first is that this court has no territorial jurisdiction, as importation of oil in question was at Kandla Port, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t they could not disposed of expeditiously. After learning that the writ petitions were already set for final hearing before one Bench, the Supreme Court recalled the earlier order. One reason for early disposal was that heavy fine of Rs. 5 crores has been imposed upon the petitioner. But, by the time we could hear the matter, about two years have elapsed. The petitioner cannot now be sent to the Appellate Tribunal where the remedy of appeal is barred by limitation. For all these reasons the discretion has to be exercised in favour of the petitioner. The preliminary objections are, therefore, rejected. 156. There is no merit in the Respondent s submission that they are deprived of some right, allegedly traceable to Section 129(A). I have held that the Collector s finding is without any evidence. The department had not produced any data before the Collector or even before this Court to show that industrial oil was also being imported by S.T.C. as a canalised Item or that there was any such policy. Respondents cannot be permitted to create new evidence and support the order of the Collector. The violation of natural justice, particularly the surrender of the judicial decision-makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original case. I do not think that the question of the jurisdiction of this court (and the alternate remedy) can be and should be resolved by these mutual accusations. The Respondent has contended that they are deprived of the right to show on merits that the order of the Central Government in revision was wrong. They also say : The petitioners had sought to preclude the respondents from contending such questions as were not decided by the Collector. I think that these contentions are contrary to law and are based on misunderstanding of the powers and functions of the new tribunal. It is pre-postures to say that the Government should be given an opportunity before an Appellate Tribunal to contend the questions which were not even decided by the Collector. So, also the order of the Central Government in revision which has acquired finality in law, cannot be re-opened even before the new Tribunal. The new Appellate Tribunal has been established not only to ensure objectivity and impartiality but to demonstrate through its actions that it was doing justice and fair-play. The Tribunal consists of the Judicial Members which are drawn from the Judicial and Legal Service. There are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working in separate jurisdictions and because of the importance of these matters both to the assessee as well as revenue. Removal of uncertainties has to be the guiding principle, for every judicial or quasi judicial system, which approach is reflected in the practice in the Supreme Court as well as High Courts, of reference of general matters of importance to larger Benches, which procedure is extended to cases of conflicting decisions also. The Tribunal has relied upon J.D. Patel v. Union of India (1978 E.L.T. Page 540), a decision of the Division Bench of Gujarat High Court. It may be noted that the order of the Central Government in revision and the Special Bench of the Board in our case precisely achieved the same purpose of unified, and integrated approach and removal of uncertainties. 159. Reliane on J.D. Patel v. Union of India, is important for another reason, because, that decision endorses the principle of judicial discretion laid down by the Bombay High Court and Madras High Court. The learned Judges of the Gujarat High Court held: As a matter of law the earliest decision of the Division Bench of the Bombay High Court in Maneklal Chunilal (1953 24 ITR Page 375) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government, the present Tribunal came into being on 11.10.1982. The revision application was, therefore, transferred to the Tribunal for decision. A three member special bench of the Tribunal heard the matter. The Tribunal found that the Trade Notices and the Tariff Advices, referred to by the Collector, had no application and the Collector was not right in classifying the goods under Item 49 of the Central Excise Act. The Tribunal also held that the Collector was wrong in relying upon I.S.I. specifications for the said classification. The Tribunal observed : For determining whether Jockey Pulleys are bearings for the purpose of levy of excise duty reference to ISI definitions may not be strictly justifiable. Besides, in the show cause notice given to the petitioners, there was no reference to ISI definitions, therefore, Collector could not base his decision on ISI definitions. The Tribunal then held : The Collector s findings that Jockey Pulleys are known as bearings in the trade is not supported by any evidence; on the other hand, the appellants had placed sufficient evidence before the Collector as mentioned above which we find no reason to disbelieve ..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions had not been considered and that if they had been considered a different view might have been taken. But for no reason at all there can be no departure from the view taken in an earlier year. It is not suggested that there were either fresh facts, change in law, change in process of manufacture or in the entries of the tariff. Applying the ratio of above decision, it would appear that the Collector was not justified in changing the stand and holding that Jockey Pulleys are classifiable under Item No. 49 of the Central Excise Tariff . (Emphasis supplied). The decision of the Appellate Tribunal in Mukand Engineering Works, is a complete answer not only to the question of alternative remedy but the entire case of the respondent before us, for the following reasons : 1. The Collector s finding on the trade practice was without any evidence and evidence of the petitioner was ignored. 2. I.S.I, specifications do not determine classifications. They cannot be relied upon when they were not disclosed in the show cause notice. 3. The Collector is bound by the decision of the Central Government in revision. Indeed, the Tribunal itself felt bound by the said decisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to the benefit of Notification No. 89/79-C.E., dated 1-3-1979. The Collector held that the appellants were not so entitled to the benefit of the said Notification and imposed a fine of Rs. 5,000/-. Setting aside the order of penalty the Tribunal held : As to the question of penalty, it does not appear that there was any attempt on the part of the appellants to evade payment of duty. The appellants had informed the excise authorities of their activity and themselves voluntarily furnished necessary figures which constitute the basis of the present action. Besides, there was a decision of the Board in the case of Hindustan Construction Co. Ltd. from which the appellants could reasonably believe that fabrication of structural did not constitute manufacture of goods. Considering all this, we do not think that imposition of penalty on the facts and circumstances of the case is justified. VI. Conclusions : 163. The impugned show cause notice and confiscation order is a repeat performance by Collector of Ahmedabad Shri B.V. Kumar. In Mukund Iron Works the same Collector had ignored the earlier decisions of the Central Government in revision and had used I.S.I. specification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping country, has necessarily to be tuned to its general economic policy founded upon its constitutional goals. The requirements of its internal and international trade, its agricultural and industrial development plans, its monetary and financial strategies and last but not the least the international political and diplomatic overtones depending on friendship, neutrality or hostility with other countries . There must also be considerable number of other factors which go into the making of an import policy. Expertise in public and political, national and international economy is necessary before one may engage in the making or in the criticism of an import policy. Courts do not possess the expertise and are consequently incompetent to pass judgment on the appropriateness or the adequacy of a particular import policy. These observations of Chinnappa Reddy, J. in the decision of Liberty Oil Mills and others v. Union of India and others [(1984) 3 S.C. 465] succinctly bring out that the formulation of an import and export policy is entirely within the domain of the State and the courts cannot venture to question its propriety or give any directions. 167. The approach that in a taxin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the statute is dealing would take them to be. However, the same Item may be understood in different context depending upon whether he is a manufacturer, producer, importer or consumer. Even in different sets of business community, the same may not have universal implication. Thus the term spirit may invite different response amongst dealers of medicines from those connected with points paints, furniture etc. One class may treat the same as having reference to denatured spirit and the other methylated spirit. A buyer going to a cycle market and seeking pump , would naturally got an air pump while another seeking the same Item in an electrical or sanitary market may have response of electrical or water pump. Cash million which has no element of wool in it would generally be found in shops selling wool and the house-wife would only term it as wool. Similarly, it does not stand to reason that the Item coconut oil must have relevance to that which is edible and not the non-edible or industrial variety. It is in the State of Kerala and some places adjoining the same that coconut oil is primarily used as a cooking medium. In the rest of the country it is understood and used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the licence. However, in case such revalidation has to be further obtained for a period after those six months, the authorities competent to impose such conditions as they may deem proper. The import thereafter can be effected subject to such conditions. It is for the licence holder to not avail of the licence if the conditions are not acceptable to him. If however, he does so, he is bound by them and must be held to be estopped from pleading later that he was not governed by those conditions. In this regard there is no gain-saying that import licences are issued every year keeping in view the country s requirements of that year. Normally such licences should be availed of during the period for which they are issued. If they are allowed to lapse, the discretion rests with the authorities to revalidate them or not. If they in this process choose to impose certain conditions, as they may consider appropriate considering the requirements of ensuing years, no exception can be taken. The licence holder who has already made a default in importing the goods in the relevant year for which the licence was issued can avail the licence subject to such conditions only. Now in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department and this court want to go into the propriety of that decision, we are told to keep our hands off. I am in this regard unable to agree with the petitioner that the decision of the Central Government is a binding precedent on the customs department. It is the decisions of the Supreme Court and of the High Courts which can operate as precedents. Stare Decisis applies only to the decision of the highest courts. The Central Government was not a court. It is not even certain if the Special Secretary who gave that decision on behalf of the Central Government was a law graduate. Subordinate courts, quasi judicial bodies or tribunals have not enough judicial maturity, expertise acumen and experience which can make their decisions as precedents having binding force. They can only be persuasive. The decisions on which the petitioner has sought to rely have been distinguished by learned Sachar, J. and I need not refer to them here again. However, there is one aspect which needs to be mentioned. Section 131(3) of the Customs Act as it existed before the subsequent amendment and under which Mr. M.G. Abrol, Special Secretary of Ministry of Finance, Department of Revenue, Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coconut oil got released which perhaps reflects that it was considered yet advantageous. It has subsequently been marketed. The customs authorities have, of course, referred to the prevailing market rates then and pointed out that the petitioner has still made substantial profits. The petitioner has, however, disputed that the market rate was as mentioned by the respondent and has pleaded that the same was much less. It has also been pointed out that the petitioner had to pay considerable interest to the banks from which loans were taken for payment of that large amount. Be that as it may, brother Sachar, J. has directed the consideration of the propriety of the quantum of redemption amount to the Tribunal. The circumstances and considerations which prevailed in doing so have been mentioned in my brother s judgment. It has been taken note that the present cases have taken considerable time to decide and passed through various stages. Requiring the petitioner to move appeal before the Tribunal against the order of the Collector has been considered to be cumbersome and may further delay the matters. Moreover, this Court in the exercise of the writ jurisdiction would not like to probe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any matters relating to import. If he, therefore, gave such opinion, the same was in exercise of power available with him, and not that thereby he usurped in himself the quasi judicial functions of the Collector or the Board. Of course, those authorities may still be inclined to ignore his interpretation if they find in compelling circumstances to not agree with the same. However, mere taking into account his views does not render the order of the Collector or the Board as not theirs, and, therefore, violative of well recognised judicial norms of independence. 178. I am unable to accept that this writ petition is maintainable without exhausting the other remedies of appeals available under the Statute, in case it is sought to be urged that the Central Government s order under Section 131 is binding for all times, and the Tribunal too could not have taken an independent contrary view. Much water has flown since the old concept adhered to by judicial Committee of the Privy Council that a Subsequent Bench could not differ with the legal view taken in an earlier decision. That infallibility of judicial mind as long been given a go-bye, and with changing concepts and values, highest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew differently in other years. However, principles of res judicata or binding character as precedent in another ...... operative in taxing statutes, much less of quasi judicial bodies. They, of course, deserve utmost respect and have persuasive value. 181. When a case is referred to a larger Bench by a Single Judge, the entire file, papers and written submissions made and the file of the Single Judge go before the larger Bench. These documents and submissions need not be, therefore, re-submitted. 182. Brother Wad, J. has aptly observed that the new Appellate Tribunal has been established not only to ensure objectivity and impartiality but to demonstrate through its actions that it was doing justice and fair play. Why, therefore, the petitioner has chosen to by-pass the Tribunal and come straightaway in this writ is not understandable. There should be no reason to suppose that the Tribunal would not have given judicious independent decision. 183. Before concluding, I may also refer to the cartoon about which reference has been made by brother Wad, J. It need hardly in this regard, be impressed that often a cartoon poses a matter of momentary interest, or an aspect from certa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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