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TMI Blog1992 (12) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... s as follows :- Sl. No. Ayurvedic/Unani name of the crude drugs inclusive of parts Scientific and/or English name of drug. 41. Zaitun (Tel-oil) Olea europoea Limn. Olive. 5. On 29th February, 1992 Public Notice No. 278-ITC (PN)/90-93 was issued by the Chief Controller of Imports Exports with reference to the various lists and appendices contained in the Import and Export Policy, 1990-93. The Public Notice provided for a Negative List of Items comprising of restricted, banned and canalized items. Capital goods in Appendix 1 part A, raw materials and components in Appendix 2 Part B, restricted instruments in Appendix 8, and Sports goods in Appendix 11 would be in the Negative List but import would be permitted against licence. Items in the Canalized Lists (Appendix 5 Part B) would also in the Negative List and continue to remain items in the restricted List, Appendix 2 Part A would also be Negative List and continued to be banned. The Public Notice goes on to say :- All items not included in the Negative List mentioned above will be freely importable. Accordingly Appendix 1, Part B, Appendix 3 Part A B, Appendix 5, Part A, App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le sets or in finished form. Not permitted to be imported except against a licence or in accordance with a Public Notice issued in this behalf. 8. Eleven specific items have been mentioned as being included within the phrase Consumer Goods . Below the List of these 11 items it is stated :- However, the following items shall not be regarded as consumer goods. 9. Twenty eight items have been excepted from the description of consumer goods. Item No. 8 reads as follows :- Sl. No. Description of items Nature of restriction 8. Crude drugs required for making Ayurvedic and Unani Medicines. Import of Jade, pearls and corals will be allowed only in powder form and of non-jewellery quality only. 10. The vessel berthed in Calcutta on 3rd April 1992 and on 6th April 1992 the petitioner filed 2 separate Bills of Entry in respect of two consignments for home consumption. The Bills of Entry were assessed on 22nd April 1992. On 30th April 1992 orders were passed by the Customs Authorities for appraisement drawing of samples and physical examination of the goods. The original Bills of Entry were returned to the petitioner by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Controller of Imports Exports had written to the Collector of Customs, Madras, regarding a clarification of the import of buttons, snap and zip fasteners under the Export and Import Policy, 1992-97. In that letter it is said :- It is hereby clarified that as per Export and Import Policy, 1992-97, the items allowed earlier under OGL or against Exim Scrips are allowed to be imported freely without a licence. Licence is required only in respect of specified items included in the Negative List of Imports incorporated in the Export and Import Policy, 1992-97. Hence .he items not included in the Negative List of Imports may be permitted freely without a licence especially those items which had been shifted earlier from the Restricted List (Appendix-2B) to Appendix 3 (Part A and B) or OGL, as me case may be, prior to the an nouncement of this policy. It may he further stated that Buttons, Snap and Zip Fasteners are freely importable without import licence and would not be treated as consumer items falling within the scope of Negative List of imports of the current Export and Import Policy. 14. It is urged that this interpretation should be accepted by the Customs Authorities who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (J 313) (Cal.) paras 65, 66 and Head Notes (e) and (f). 3. The decision to treat Olive Oil as consumer goods and therefore as a restricted item of import was within the authority of the Customs Authorities and if that were wrong the petitioner should have been gone up by way of appeal. Reliance has been placed on the decisions reported in AIR 1963 SC 1319 paras 7,8 9; AIR 1964 SC 1519 paras 5, 6 7; AIR 1973 SC 194 and AIR 1988 SC 2176 = 1988 (37) E.L.T. 474 (SC). It is submitted that it was not open to the petitioner to contend that there was no decision of the Customs Authorities. The decision, according to the respondents, was embodied in the order dated 29-2-1992. Alternatively it was an oral decision which could have been appealed from. Reliance has been placed on the decisions reported in AIR 1940 PC 105 at 110; AIR J964 SC 1419 Head Note B; AIR 1964 SC 1451 Head Note C and AIR 1964 SC 1519. 4. The matter involved the revenue and as such Court should not interfere with the action of the Customs Authorities. Reliance has been placed on the decision reported in 1985 (19) E.L.T. 22 (SC) = AIR 1985 SC 330 at 331 para 3 and AIR 1983 SC 603 paras 6,11 and 12. 5. The deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 2 Part B was amended. Appendix 2, Part B of the Export-Import Policy, 1990-92 contains a List of restricted Items. Item 172 which is within that list is as follows : 172. All consumer goods, however described, of industrial, agricultural or animal origin, not appearing individually in Appendices 3 Part A and 5 or specifically listed for import under Open General Licence. 21. In other words all consumer goods except for inter alia, the goods specifically listed for import under OGL are restricted items of import. The respondents contention is that the Order dated 29-2-1992 so to speak erased this exception resulting in the items which had been listed for import under OGL becoming restricted items of import. 22. This was clearly not the intention of the Import Export Authorities. The list of items importable under OGL was contained in Appendix 6 to the Export-Import Policy, 1990-92. The list itself was deleted by the Public Notice dated 29-2-1992. The language of the Public Notice as quoted earlier in this judgment would show that specific appendices had been included in the negative list which covered the restricted, banned and canalised items. The appendices mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Notice dated 29-2-1992 and Public Order dated 29-2-1992 in the manner in which I have interpreted them, is borne out by the letter dated 15-5-1992 written by the Import Export Authorities to the Collector of Customs Madras in respect of the consumer items such as buttons, snap, zip fasteners etc. 28. In a similar situation this Court has already held [Asiatic Oxygen Ltd. v. Assistant Collector of Customs: 1992 (57) E.L.T. 563]: The Customs Authorities are a department of the same Government. It is arbitrary on their part to put a construction on the phrase initial setting up" different from the construction put by the other departments of the Government of India." 29. It is true that this Court will not interfere if the view taken by the department is rationally supportable. However, in this case, I am unable to hold that the interpretation put by the Customs Authorities on the scope and effect of the Public Notice dated 29-2-1992 and the Order dated 29-2-1992 can be so supported. 30. The decision relied upon by the respondent authorities in this connection are inapposite. The decisions namely. Collector of Customs, Madras v. K.G. Sethi, reported in AIR 1963 Mad. 131 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposition but it has been repeatedly admitted that the Olive Oil was classified and cleared under Item 41, List 4 of Appendix 6. 34. The next submission of the respondents was that the petitioner should be relegated to the remedy by way of appeal under Section 128 of the Customs Act, 1962. The first hurdle that the respondents had to face in making this submission was that there was no decision from which an appeal could be preferred. 35. I have found it difficult to understand the submission of the respondents that the order dated 29-2-1992 was the decision of the Customs Authorities. Apart from anything else, this submission surely begs the Question as to what then was the decision? According to this Court the effect of the Order dated 29-2-1992 was that items which had been listed in Appendices which has been deleted were freely importable. If that is the decision, there is no reason for the respondents to detain the Olive Oil on the ground that it is a prohibited item of import at all. 36. The alternative submission of the respondents was that the decision of the Customs Authorities was verbal. Reference has been made to the statement in the petition to this effect. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany (supra), the Supreme Court allowed the Counsel to argue the writ petition on the question of construction even though there was an alternative remedy provided under the statute. 40. Finally, in the case of L Hirday Naryan v. I.TO. : AIR 1971 SC 33, the Supreme Court has held that it would not be a proper exercise of judicial discretion to reject a writ petition on the ground of alternative remedy when the matter had been entertained and heard on merits. The third contention of the respondents is accordingly rejected. 41. As far as the fourth submission of the respondent authorities is concerned, no rule that the High Courts should not interfere on matters involving the revenue. The decision in Assistant Collector of Central Excise, Chandannagar, West Bengal v. Dunlop Company Ltd. : AIR 1985 SC 330 = 1985 (19) E.L.T. 22 (SC) relied upon by the respondents was on an appeal from an interim order and did not relate to the final disposal of a writ application involving questions of revenue. The second decision relied on by the respondents in this connection viz. Titagarh Paper Mills Co. Ltd. v. State of Orissa is an authority for the proposition that an alternative remedy shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te an estoppel is rejected. Firstly the circular dated 15-5-1992 was not a representation of the Customs Authorities, but the decision of the Import Export Control Authorities. It is not the respondents case that the Import Export Authorities wished to resile from the stand taken by them in the circular dated 15-5-1992. The decision of the Import Export Control Authorities ought to be followed by the Customs Authorities as I have already held. The question of estoppel does not arise. 46. In the decision in Collector of Customs v. M/s. M. Sasikanth Co.: AIR 1992 SC 696 = 1992 (57) E.L.T. 684 (SC), the Supreme Court was considering a situation where the Tribunal had held that an importer was justified in importing a canalised item because he had acted on the representation of the departmental authorities. The Supreme Court held that this should not have been permitted as such representation was contrary to the clear law laid down by the Supreme Court earlier. Reliance on this judgment by the respondents was wrongly placed. Not only is there is no question of any representation being made by the Customs Authorities in this case, there is also no question of the circular dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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