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TMI Blog1989 (10) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... al action. The goods were confiscated but allowed to be cleared for home consumption on payment of fines in lieu of confiscation. The objection to the imports was on the basis that in Appendices 3 and 5 some of the items imported are specifically mentioned as banned items and restricted items respectively. Accordingly, it was held that the impugned goods were not permissible for import under OGL provisions. The matter was agitated by the appellants before the Collector of Customs (Appeals). They took the stand that laboratory chemicals and reagents are a separate class of compounds and though they may appear in same appendices in a general way without reference to quality, grade etc., the laboratory chemical grade of such chemicals should be taken outside the scope of such Appendices. They referred to Sl. No. 179 of Appendix 5 which bears a specific description Laboratory and Reagent Chemicals, the following . Similarly Sl. No. 292(4) of Appendix 5 covers Potassium Fluoride A.R. (Analytical Reagent) and Technical Grade, as distinct from the generic description Potassium Fluoride. It was contended before the Collector (Appeals) that the items imported were for use in the laboratory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grade or All grades . It was accordingly held that chemicals imported were not covered by the said Appendices and hence covered by the licences produced. The appeals were accordingly allowed. We find that this order has recently been reported vide Western Trading Corporation 1989 (43) E.L.T. 124. Apart from the evidence submitted by them regarding release of similar laboratory chemicals covered by Appendices 3 and 5 of the Import Trade Control Policy against Open General Licence and the decisions of Collector (Appeals) and Appellate Tribunal (WRB), they submitted detailed statements showing the comparative price structure of the laboratory chemicals imported by them and the same chemicals of industrial or other than laboratory chemicals grade, in support of their contention that the price of laboratory chemicals is much lighter than that of the other grade. 6. After the hearing of the appeal on 24th January, 1989, the learned Departmental Representative Shri P.C. Jain submitted a written note outlining his arguments. The points raised were as follows :- In Jain Exports Pvt. Ltd. Another v. Union of India, reported in 1988 (17) ECR 631, the Supreme Court had held that in App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and reagents. On the question of the effect of price, purity etc. on the classification for Import Trade Control Policy purposes, he contended that the items appearing in the Policy are not grouped price-wise and the same cannot be differentiated on the basis of value or purity. He pointed out that there is difference in the value of edible and non-edible coconut oil and this factor was not a determining factor in the judgment of the Supreme Court in the case of Jain Exports, supra. 9. Reacting to the contentions raised by the learned Departmental Representative, it was argued by the appellants vide their letter dated 31st January, 1989 that the statement that there were only some stray cases of clearances was not correct. There have been quite a few clearances in Bombay and Calcutta and the question had been decided by Collector (Appeals) and the CEGAT, West Regional Bench. These are not erroneous releases. It was also contended regarding the decision taken in the meeting of the Joint Chief Controller of Imports Exports, Calcutta and the Calcutta Customs authorities that it cannot be guaranteed that the licensing authorities had given a correct decision by an one-sided heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Policy for laboratory chemical grade of only certain chemicals. All other laboratory chemicals not so specifically banned or restricted in the Policy would be permissible notwithstanding the fact that as chemicals otherwise of ordinary grade they may be covered in Appendices 3 and 5. 13. The points raised by the appellants were strongly resisted by the learned Departmental Representative who maintained that the orders passed by the lower authorities were legally in order for the reasons pointed out by him. These have been referred to earlier in this order. He also referred to the claim made by the appellants about the current practice of Calcutta Custom House of releasing laboratory Chemicals against OGL and stated that the ITC Policy has undergone a change subsequent to the 1982-83 Policy in respect to the appropriate Serial Number relating to laboratory chemicals. 14. Another point raised by him was that apart from the fact that certain products involved in the present appeals figure in Appendix 3 and Appendix 5 as banned and restricted items respectively there are certain products which figure in other appendices where they figure as restricted items viz. solvents. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packings at comparatively lower prices. There is separate reference to laboratory chemicals in Appendix 5 of the Policy. This would go to show that they constitute a separate class of products, dealt with separately in the ITC Policy. If certain chemicals are not permissible for import even as laboratory chemicals they are specifically described so in the Policy. Examples have been given by Shri Mehta in his arguments and the appellants letters. The Collector (Appeals) in his order no doubt specifically dealt with this contention of the appellants when he observed that the same is not tenable in view of the clarification in Chapter 22 of the AM 84 Import Policy Book. He has observed that it has clearly been laid down in Para 240(a) Chapter 22 vide Page 71 of the Policy that any item with a specific or generic description appearing in Appendices 3 to 9 will preclude the eligibility to its import under Open General Licence except where the Policy allows this clearly. He has gone on to state that there is no Policy laid down for import of the impugned goods appearing in Appendix 3 and 5 for clearance under OGL under the description of laboratory chemicals and Regents. 18. We are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oratory chemical grade for use in laboratory, their permissibility would have to be examined but as that was not the problem in the respective cases, it had been held that the entries described without reference to quality would cover all grades. They had been imported as coconut oil and Piperazine and not as laboratory chemicals. 20. Shri Jain, learned JDR had raised a question whether gold could be permissible for import as laboratory chemical. The ban on import of gold in any form is separately provided for and the question of its importability as laboratory chemical does not arise. 21. The fact that the products have been classified as laboratory chemicals for purposes of levy of duty would also go to support the appellants case on the licensing angle particularly as the ITC Policy has also got a specific provision for laboratory chemicals. The change in the wording of the Policy provisions in subsequent periods has got no relevance for deciding the present issue before us. 22. Regarding the clearance of the department of Atomic Energy of the Government of India for any product specifically provided, we find that this point was not taken up earlier by the department. Goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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