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TMI Blog1987 (3) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... estion were not intra uterine contraceptive devices falling under OGL in Appendix 6 Sl. No. 34(iii) but they were Sea Tangle Tents used for terminating pregnancy. In the show cause notice issued to the importer it was further alleged that the import of the goods was not covered by the Drugs Act and that the import did not have the permission of the Drugs Controller of India as envisaged in the OGL. The Collector of Customs, Airport held the adjudication proceedings, considered the written explanation of the appellants and the oral submissions made by Dr. Kantawala and thereafter passed the impugned order confiscating the goods absolutely for contravention of the Import Trade Regulations. 2. On behalf of the appellants Dr. Kantawala referred to the provisions of the OGL as set out in Ex. F to the appeal. He also drew our attention to the description of the goods as contained in the relative B/E and in the invoice. He argued that both the B/E declaration and the invoice described the goods as Intra Uterine Contraceptive devices. But their clearance under the OGL was objected on two grounds; firstly that the goods were not contraceptive and secondly they were not approved by the Dru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Drugs Controller was exercising the delegated functions on behalf of the Drugs Controller of India. The Technical Officer in the Drugs Controller s Office had permitted the import and his endorsement in the B/E should be taken as the permission of the Drugs Controller in terms of the OGL. There was thus substantial compliance with the requirements of the OGL. In this behalf he relied on the judgment of the Supreme Court in the case of K. Kamaraj Nadar AIR 1958 S.C. 687. He read out Para 31 of the judgment in support of his contention. Relying on the ratio of this decision Dr. Kantawala contended that the Technical Officer s endorsement should be taken as substantial compliance with the requirements of the OGL. He further relied on the Supreme Court s decision reported in AIR 1970 S.C. 765. In view of these submissions, Dr. Kantawala contended that the appeal should be allowed and the Collector s order should be set aside. 3. On behalf of the Collector, Shri Pal submitted the samples of the goods imported by the appellants. He explained that the samples had been drawn from the consignment and they were representative of the same. He further added that these were a type of Sea wee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s serial number covers family welfare equipments/instruments/appliances of the specific categories mentioned therein. The appellants claimed clearance of the goods in terms of sub-sl. No. (iii) under Sl. No. 34 which covers Intra Uterine contraceptive devices as approved by the Drugs Controller (India) New Delhi. Therefore, the question which calls for determination is whether the imported goods can be treated as intra uterine contraceptive device for clearance under the aforesaid OGL. The appellants have made two-fold submissions in this behalf. Their first contention is that in the present case this condition is not capable of enforcement as the imported consignment does not fall within the jurisdiction of the Drugs Controller (India). Examining their contention it is seen on the basis of the allegation in the show cause notice and on the Letter dated 23.6.1986 of the Assistant Drugs Controller, Bombay that the imported goods Laminaria Sea Tangle Tents are not considered as a drug as far as the provisions of the Drugs and Cosmetics Act, 1940 and the rules thereunder are concerned. He has quoted the Letter dated 27.7.1983 of the Director General of Health Service in his letter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the grounds urged in the appeal memorandum. The ground (a) is very general in nature. The ground (b) reads : The appellants submit that the question of licences depends on whether the imported goods are, in fact contraceptives or not . In terms of the I.T.C. Policy, these goods would fall under Sl. No. 34(iii) of the Appendix - 6 - provided they are approved by the Drugs Controller, New Delhi, (emphasis supplied) . 7. It is further stated in that ground In fact all drugs and the like have to be so approved by the said Drugs Controller. Now, it is not possible for an importer to await such a clearance in respect of each consignment. Therefore, the said Drugs Controller has appointed Assistant Drugs Controller at various parts to grant such no objection, i.e., his approval for release. In the work they are assisted by Junior Officers who are designated as Technical Officers. Therefore, it is enough if such a Technical Officer issues a no objection. Such no objections are always construed as having been issued by the Drugs Controller (India). It is then stated that on reverse of the Bill of Entry no objection has been endorsed by the Technical Officer and this endorsement i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there are Junior Officers designated as Technical Officers to assist the Asstt. Drugs Controller and the Technical Officer had endorsed no objection for clearance of the goods in question, and therefore, it was urged that there was approval by the Drugs Controller. The appellants have not chosen to produce any evidence to support their contention that the Drugs Controller had delegated his powers to the Asstt. Drugs Controller. Further, there is also no evidence that the Technical Officers were appointed to assist the Assistant Drugs Controller. Even assuming that the Technical Officers were appointed to assist the Assistant Drugs Controller and further assuming that the powers of the Drugs Controller had been delegated to the Assistant Drugs Controller, no objection endorsed by the Technical Officer under no stretch of imagination can be considered as an approval either by the Assistant Drugs Controller or by the Drugs Controller. It is settled law that a delegate cannot further delegate. It is not contended that the Assistant Drugs Controller had delegated his powers to Technical Officer. On the other hand, the letters relied on by the Department which form part of the pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is now well settled even if some materials are not disclosed in the show cause notice the adjudicating authority is not preclude from relying on those materials if during the adjudication proceedings the party who is going to be affected is given sufficient notice of those materials and given an opportunity to adduce evidence in rebuttal or to make effective representation against the use of such material. Dr. Kantawala had admitted that during the adjudication proceedings, the Collector had shown the correspondence on which he based reliance. If the appellants had not objected to it that stage or in their appeal memo, they cannot be allowed to urge the ground at the hearing of the appeal. 14. Coming to the second of the grounds suffice it to say that the party who wants to take advantage of the facility granted in the Policy, cannot be allowed to challenge. The very policy on the ground that a particular part of which the party is not able to comply with is not capable of enforcement. 15. The above apart, there is also no substance in the contention of Dr. Kantawala that the Drugs Controller cannot approve of a contraceptive which according to Dr. Kantawala, was not a drug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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