9911796707
TMI Blog1989 (3) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same Policy Book. 2. The petitioner filed Bill of entry bearing No. 23009 dated 28-4-1988 through its clearing Agent for the clearance of ASC valued at Rs. 11,26,270/- C.I.F. and sought clearance of the subject goods under Open General Licence Appendix 6, Serial Number (1) read with Serial Number 4 of list 8, Part I of Import and Export Policy for 1985-88. The respondent rejected the claim of the petitioner to release the subject goods under O.G.L. as according to him, they fall under N-ASC which require specific licence. Therefore the respondent ordered confiscation of the goods and levied a fine of Rs. 3 lakhs in lieu of confiscation. Aggrieved by the order of the respondent confiscating and levying Rs. 3 lakhs as fine in lieu of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as N-ASC coming under Appendix-3 and that therefore his import of the chemical without licence was liable to confiscation. The petitioner took delivery of the goods after paying the fine under protest and the matters are pending in appeals before the Tribunal. While so, against the impugned order of the respondents without exhausting the statutory alternative remedies the petitioner has come to this Court and has filed the above writ petition. Learned Central Government Standing Counsel submitted that the writ petition is liable to be dismissed on the sole ground that the petitioner has got an effective alternative remedy. On merits the learned counsel submitted that a reading of paragraphs 20 and 21(c) of the Policy will show that the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific description in Appendix 2 Part B or 3 Part A will prevail over an item with a generic description in any of these Appendices; (f) any item in Appendices 2,3,5 or 8 with a specific or a generic description, will preclude the eligibility to its import under Open General Licence, except where the policy allows this clearly." Paragraphs 23 (3) and 23 (3) (1) are to the following effect : 23 (3) In respect of items other than iron and steel, an Actual user, i.e. any person desirous of importing an item subject to Actual User condition, may seek clarification from the DGTD (Import and Export Policy Cell) Udyog Bhavan, New Delhi-110 011 about : (i) the scope of any item in Appendices 1,2,3 Part-A, 5,6,8 and 10;" From a reading of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (D.K.Roy) DEVELOPMENT OFFICER." The above clarification read along with paragraph 23 (3) (i) set out above places the matter beyond doubt viz., that ASC and N-ASC is one and the same. In the counter-affidavit, it has been fairly admitted as follows : Of course, the final authority for interpretation or for clarification of matters contained in the Policy is the licensing authority . In view of the clarification made from the Office of the Licensing Authority, it is too much for the respondent to contend that he can place a different interpretation contrary to the one issued from the Office of the Director General of Technical Development (Import and Export Policy Cell). Furthermore, it is seen from Volume 39, Part 4 Excise Law Time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was specifically allowed under OGL could not be withheld by the customs on the ground that it was covered by a generic entry in the banned list of the (import) policy. The case related to import of dry fruit, an item listed in OGL. But the customs objected clearance of this item on the plea that it was consumer item covered by the banned list. The court overruled this objection, and held that an OGL item could not become a consumer item simply because it was imported in small consumer packs. 6. In the above back drop, I am of the view that the opinion of Dr. K. Rajagopalan, Professor Head of the Department of Organic Chemistry, University of Madras and the chemical examination report of the Customs House Laboratory can not be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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