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TMI Blog1988 (11) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... Board under Section 129D(1) of the Customs Act, 1962. 2. The relief claimed in the appeal is for setting aside the aforesaid order of the Collector and to determine the correct legal position of issue raised and to declare that the import of lard is not correct under OGL Appendix 10(1) and the same is covered under entry 41 of Appendix 8 of Import and Export Policy, 1982-83. 3. The facts of the case necessary for the disposal of the present appeal can be briefly stated as below. 4. The respondents imported a consignment of 3474.416 M.T. of lard and filed two Bills of Entry for clearance of the aforesaid consignment. The respondents claimed clearance of the consignment in question under OGL Appendix 10(1) of Import Policy AM-1982-83 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs discharged the show cause notice issued to the respondents and allowed the consignment accepting the licence produced. The department have come in appeal against the said order of the Collector of Customs. 6. The learned S.D.R., Shri K.M. Mondal, argued on behalf of the department stated as below: 7. A show cause notice was issued to the respondents by the Collector on 22.5.83 and the adjudication was done on 20-6-83. However, before adjudication he had made a reference to the office of the Chief Controller of Import Export seeking clarification as to whether lard, which is soft white fat from hogs will come within the meaning of tallow of any animal origin. He has also indicated in his reference to the CCIE that lard is usually a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite the fact that as per the Policy, it is binding. In this connection he also cited the Delhi High Court judgment reported in E.L.T. 1987 (29) page 753, wherein the High Court had held that in the matter of interpretation of ITC Policy with regard to the provisions of the licence as well as the additional licence, the clarification given by the CCIE is legally binding. In the circumstances, it was pleaded by Shri Mondal that the order passed by the Collector without taking into account the clarification received from the CCIE is bad in law and is required to be set aside. On being asked that in the context of the fact that the goods have already been cleared, what specific relief is sought for by the department, Shri Mondal stated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment 1988 (4) SC page 1988 (Judgment Today). It was also his submission that even the Supreme Court have recognised the importance to be accorded to the importance of commercial parlance in case of dispute and where the Tariff entry does not clearly give the technical distinctions. He also argued that in this case, even for the purpose of customs assessment, lard was treated as distinct from tallow and the impugned item was charged to 100% duty and the concessional rate of duty of 15% available to the tallow has not been extended to the item. It was also contended by him that later by a Public Notice issued under 42 (ITC) PN dated 01-10-83, the entry was amended to include fat, oil etc. thereby making the position clear that at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including Mutton tallow. We have consulted DGTD also on this point. In this regard this office letter No. IPC/54/7/83/13716 dated the 28th March, 1983 (copy enclosed) addressed to all Collector of Customs may also be referred to for necessary action. This letter dated 17-5-83 is not marked secret . Only the other letter dated 12-9-83 referring to the import by the respondents is marked secret. In any case, this letter was not before the adjudicating authority before adjudication but was received only after adjudication. When an open clarification has been received from the office of CCIE under letter dated 17-5-83, particularly when it invites attention to a letter issued to all the Collectors of Customs, whether the Collector is justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities to interpret the licensing policy. If the licensing authority interprets the policy one way and the Customs authorities take a contrary view, there will be a conflict between the two authorities, with the result that the importer would be put to considerable inconvenience." 11. In the context of the aforesaid decision of the Bombay High Court and also the view held by the Delhi High Court referred to by the Departmental representative, we are inclined to agree with him that the Collector cannot brush aside the clarification received from the licensing authority especially when it has been received well before the adjudication and also the Collector himself has sought for the clarification. The learned advocate s arguments by c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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