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TMI Blog1988 (3) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... anies Act, 1956, and is a recognised export house , dealing with export and import of merchandise goods, including portable generators . The petitioner No. 2 is a shareholder of petitioner No. 1 and a citizen of India. 3. In the writ petition, the petitioners have made out a case that by reason of decisions and/or actions and/or issuance of impugned show cause notices , and because of passing of the adjudication orders , and the appellate orders , which have been impugned in the present writ petition, the writ petitioner No. 2 being a citizen of India and a shareholder and his right to carry on his business, through the petitioner No. 1, which is a company, is being deprived and that the respondents are infringing the Fundamental Rights of the petitioners, guaranteed under Articles 14 and 19(l)(g) of the Constitution. 4. The Import Policy for the year 1981-82 issued by the Government of India and in terms of paragraph 185(5) of Chapter - XVIII of the said Import Policy for the year 1981-82 is relevant for our purpose. 5. The petitioner No. 1 as an export house, was entitled to import articles, falling in Appendix 5 of the said Import Policy, which are not otherwise inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n item subject to actual user condition, may seek clarification from the DGTD (Import and Export Policy Cell), Udyog Bhavan, New Delhi - 110011 about :- (i) the scope of any item in Appendices 1, 2, 3, 4, 5, 8, 9 10. (ii) the technical specification/size etc., covered by any such item. (iii)any doubt whether a particular item required by him is a raw material, component, consumable, spare or capital goods, or a consumer item banned for import under Appendix 10." 10. It is the further case of the petitioners that such clarification was sought for by some private companies, namely, one Messrs. P.B. Udyog of Mahatma Gandhi Road, Calcutta - 7, and by letter, dated February 24, 1981, the Director General of Technical Development (Import Export Cell) (D.G.T.D. for short). Government of India, has confirmed that portable generating sets (petrol driven) in question are different from the generators mentioned in Appendices 5 and 26 to the Import Policy of 1980-81, which has been annexed as Annexure K to the present writ petition, by the petitioners. 11. It was asserted by the petitioners that in view of the trade policy of the Government of India, which was published and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the relevant date, when the contract was entered into, according to the writ petitioners. 15. In the meantime, in terms of the said contract, dated July 27, 1981, the supplier made arrangements with M/s. Honda Motor Company, Japan, to supply 579 units of portable generators , by sea and air to the petitioner No. 1, and 579 units of articles valued at US Dollar 1,55,477 was sent by the said supplier by air on October 27, 1981, to Calcutta Airport. The said 579 units thus arrived at Calcutta on or about the 1st week of November 1981. Thereafter, supply has been arranged for various units and effected by ship and air. 16. In the meantime, another public notice No. 38-ITC(PN)/81 dated July 29, 1981, item No. 4 of Appendix 26 was also amended to include portable generators therein. 17. In view of this amendment, with effect from July 29, 1981, the import into India of portable generators became a restricted item and portable generators could not be imported by export houses on the basis of additional licenses. 18. It is further the case of the petitioners that the said amendment in item No. 4 of Appendix 26 could only be effective on and from July 29, 1981, and apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If you wish to be heard in the matter, you may indicate so in your written explanation. and submitted that in view of the additional licence, issued in favour of the petitioners, which was valid for import in respect of the item appearing in Appendices 5 and 7, excluding item appearing in Appendix 26, by public notice, dated July 27, 1981, the petitioners were entitled to import portable generators , which were included in item 446 of Appendix 5, and as such, the importation was legal and valid. He submitted that portable generators were only included in item 4 of Appendix 26 by public notice, dated July 29, 1981, and the said inclusion was and cannot have any retrospective effect, but can have only prospective operation. He added that during the period July 27, 1981 to July 29, 1981, there was no restriction for import of portable generators for export houses, under their additional licences and, as such, there could not be any impediment for importing portable generators and the show cause notice dated December 23, 1981, the consequential adjudication order, dated January 19/20, 1982, and the appellate order, dated March 22, 1982, are liable to bequashed. 21. At the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt with more details with the said decisions in not accepting the same, although referred to in the said appellate order and instead of passing one line conclusion that it was not possible for him to accept the arguments. 26. He has also relied on another judgment reported in 1984 (4) E.T.R. 173 delivered by Customs, Excise and Gold (Control) Appellate Tribunal, Larger Bench, Camp, Bombay, presided over by Shri Justice F.S. Gill, for the purpose of interpretation of any person aggrieved in Section 129-A(l)(c) of the Customs Act, 1962, and in the said judgment, it has been held that the Collector of Customs has no power to prefer an appeal, under Section 129-A(l)(c) against the orders passed by the Board. 27. The subject matter of the said case was that the assessee, M/s. Perfect Power Systems, New Delhi, had imported 8 consignments of portable generators and had presented 8 Bills of Entry for clearance of the consignments through their Clearing Agents, M/s. N.P. Jobanputra. The import licences, letters of authority and other relevant documents were produced before the customs authorities, Shri K. Srinivasan, Collector of Customs, Bombay, in his order No. S/10-240/82-G, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Import Policy of the year 1981-82, observed as follows : The present contention of the respondents is that the circular, dated 31-8-1981 only clarifies Paragraph 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph. That is not how the learned Judges of the High Court have understood the Circular, in their judgment under appeal. The learned Judges have stated in their judgment that the Circular dated 31-8-1981 appears to change the Import Policy and that the contention of the petitioners before them that the condition mentioned in the impugned order, dated 15-10-1981 is not found in Paragraph 138 of the Import Policy, 1981-82 is not acceptable to them. The learned Judges were right in saying that the Circular appears to change the Import Policy but they have erred in saying that the condition mentioned in the impugned order, dated 15-10-1981 is found in Paragraph 138(1) of the Import Policy 1981-82. We are unable to find any such condition in Paragraph 138(1) of the Import Policy 1981-82. In my view, that passage of the Supreme Court is the complete answer to the aforesaid argument of Mr. Das. 34. At the hearing of the writ petition, I have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods namely 3667 portable generators and give Detention Certificate within a period of fortnight subject to all the formalities of the Customs Act. But I make it clear that this order will not prevent the respondents from proceeding with adjudication proceedings and the Adjudicator shall not impose fine more than 41% of the c.i.f. value. May 11, 1982 M.M. Dutt M.K. Mukherji, JJ. So far as the first consignment of 579 portable generators are concerned, the Customs Authorities are directed to release the same to the respondents by May 15, 1982. In regard to the second consignment of 3667 portable generators the appellants are directed to complete the adjudication proceedings by May 31, 1982. In case in such adjudication proceedings the Collector imposes any fine, the appellants shall release the goods upon the respondents furnishing a bank guarantee to the extent of 40% of such fine that may be imposed. The goods shall be released by the appellants within one week of furnishing of such bank guarantee by the respondents. It appears that the learned Judge had directed that the Collector shall not impose fine more than 41% of the c.i.f. value. As in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on gets support, when portable generators had to be included in item 4 of Appendix 26 by public notice , dated July 29, 1981, and such inclusion, in my view, cannot have any retrospective effect and but can operate prospectively. 39. As such, in my view, in the facts and circumstances of the present case, during the period from July. 27, 1981 till July 29, 1981 there was no restriction for import of portable generators by the Export House under their additional licence. 40. In this context, the petitioners are supported by the decision of the Appellate Authority, viz., the Members, Central Board of Excise and Customs, New Delhi, dated June 15, 1982, referred to hereinabove, whereby the Appellate Authority, in dealing with identical item i.e. Alternators/Generators , Appendix 26 and effect of Public Notice No.37/81 dated July 27, 1981, by which entry 446 of Appendix 5 was sought to be amended by inserting after the existing description the following shall be added including portable generators , the said appellate authority, viz., Member, Central Board of Excise Customs, New Delhi, further observed that it was not for the Board to go into the dubious intention be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l vigour to Tribunals of the nature of Board of Revenue, it is certainly a consideration of natural justice that the authorities in the sphere of taxation cannot hold the citizen to their whims and caprices in matters, concerning essential practices of trade and business, allowing deductions under section 5(2) (a) (ii) in some cases and disallowing such deductions in some others, although the circumstances appertaining to both the categories, were exactly similar. In. the matter of operation of the Bengal Finance (Sales Tax) Act, the Board of Revenue is, ordinarily, the highest authority and decisions of that Tribunal are binding on the taxing authorities. It is only just and fair that the citizen who has taken his guidance from the earlier decisions of the Board shall not be allowed to be prejudiced or victimised by sudden and unreasoned reversal of the view point of that highest authority. 44. Further, in view of provisions of Chapter 20, Paragraph 199(3) of the Import Policy, 1980-81 a detailed proceeding has been laid down for obtaining clarification and interpretation of Import and Export Policy. Chapter 20, CLARIFICATION AND INTERPRETATION OF THE POLICY. 199(3) In r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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