9911796707
TMI Blog1994 (4) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for import. Show cause notice was issued to the appellants. The appellants, claimed that the items imported could not be considered as falling under the negative list and that the matter, had also been taken up with the Union Ministry of Commerce pleading that the items imported were for preparing Ayurvedic and Unani medicines and were therefore freely importable. As seen from the records, the Commerce Ministry clarified the matter and the Deputy Director General Foreign Trade clarified that though the goods can be considered as consumer goods, the Director General Foreign Trade had recommended release of the goods as a special case. The original authority did not accept the recommendation of the DG Foreign Trade and has stated as under : If the goods are released as recommended by DGFT, without adjudication for contravention in licensing regulation, it becomes a precedent and every importer of consumer goods is likely to claim the same benefit for their future imports. If such claim is made, the Department will not have any answer except to follow the earlier practice and such clearance will definitely affect the trade as they are against the intention of the Import Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in this letter it is clearly stated that the item could be imported freely under import policy 1992-97 without any restriction and in the said letter it is stated that this is also confirmed by the CCI E, New Delhi vide his letter No. 48(20)/92-97 IPC, dated 19-5-1992. He pleaded that in the face of this letter, the trade bona fide went ahead with the importation of the goods based on the clarification as came to be known in the trade circle. He pleaded that it is for this reason that DG Foreign Trade recommended release of the consignments. He pleaded that obviously there was some confusion in the minds of the licensing authorities and the appellants could not be made to pay the price for any confusion in the minds of the authorities. The learned Counsel also referred to the judgment of the Hon ble Supreme Court in the case of Akbar Badruddin Jiwani v. Collector of Customs, reported in 1990 (47) E.L.T. 161 (S.C.) and he referred us to paras 57 and 58 which are reproduced below for convenience of reference : ** ** ** ** ** He pleaded that the appellants had acted on the bona fide belief that the goods could be imported and the authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the policy 1992-97 freely without any restrictions and he also referred to the confirmation in this regard given by the CCI E, New Delhi vide his letter No. 48(20)/92-97 IPC dated 16-5-1992. The Customs authorities were also addressed by the DGFT and he has also while clarifying that the goods in question were consumer goods, has clearly recommended release of the goods i.e. Nutmegs and Mace already imported for the reasons that the importers had imported the goods in good faith based on the clarification given by the JCCI E, Madras. This is referred to in para 4.3 of the impugned order. While the lower authority may be right that the letter of the DGFT is advisory and it may not be binding on them, the question to be considered is that when the licensing authority i.e. the DGFT who is the statutory authority to interpret the policy has accepted the interpretation of the policy in a certain manner during certain period and the importers have acted in good faith in pursuance to that, in the Scheme of things, the recommendatory letter has to be given due weightage and the whole matter has to be considered in the context of the totality of the circumstances preceding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the licensing authority, their case should have been considered on that footing. We observe that the Hon ble Division Bench of the Calcutta High Court in the case of Extrusion v. CC, Calcutta reported in 1994 (70) E.L.T. 52 following the ratio of the ruling of the Hon ble Supreme Court cited supra and also in the case of Jain Exports v. Union of India reported in 1990 (47) E.L.T. 213 and in the case of P. Ripalkumar and Company v. Union of India reported in 1991 (54) E.L.T. 67, took note of the findings of the Division Bench of the Bombay High Court as under : On the specific statement made by both the counsels, we propose to examine the question as to whether on the facts and circumstances of the case, the order of confiscation passed by the Customs authorities and the order of imposition of redemption fine in lieu thereof should be sustained. In these circumstances, Shri Mehta submitted that the action of the petitioners was bona fide and consequently the order of confiscation and redemption fine in lieu thereof should be set aside.... In these circumstances, in our judgment, the import made by the petitioner cannot be faulted on the ground of mala fide and the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
