9911796707
TMI Blog1997 (5) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... tten notice; but resisted these contentions during the hearing. The Additional Collector did not accept his point of view and passed orders holding that the goods imported were not intended for clearance under the advance licence produced, by exemption under Notification No. 159/90. Hence this appeal. 2. Advocate for the appellant first contends that import is covered by the licence produced. The licence, he says was issued in August, 1989 and permitted import of Polyester Filament yarn from 60D to 350D. Subsequently, this was amended on 7-2-1990 to permit import of the yarn of 40D to 350D. He says further that conditions 1, 2 and 3 of the licence were deleted and that an additional condition which was imposed, that the licence is subject to conditions imposed or deemed to be imposed as per Clause 5 of the Import (Control) Order, 1955 except that the condition covered by Clause 5(1)(3) of the order will not apply unless otherwise expressed to the contrary on the licence, does not bar import. He contends that the DEEC Book, which is part of the import licence provides that the benefit of Notification 160/88 (sic) will be applicable to the goods. Therefore he says that the notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Notification 159/90 is a matter we shall consider presently. However assuming for a moment that they were not so entitled, it does not follow that the benefit of the licence can be denied. The import licence is an authority permitting import of goods which would otherwise be prohibited. An exemption notification under the Customs Act provides exemption from duty, either to a class of goods or to goods imported in a specific case. Whenever imports are made under the DEEC scheme or similar schemes, the import licence and the duty exemption go hand in hand. That is to say, the schemes contemplate import of goods without payment of duty and subject to condition as to importability in the licence, in order to enable production of goods for export. Legally and in fact however, the import licence and duty free clearance are separate and distinct. The fact that the advance licence is referred to in the Customs notification which in turn is referred to the advance licence, does not detract from the independent character of each of them. Therefore, although it would generally be the case that goods imported under such a scheme qualify or fail to qualify for import under the advance licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the court to support the proposition that import of goods must be regulated according to the policy in force at the time of such importation. As we have seen even by applying the later policy, it can be successfully argued that the import was legal. 9. The decision of the Supreme Court in Shashank Sea Foods v. Union of India [1996 (88) E.L.T. 626 (S.C.)] dealt with the jurisdiction of the Customs authorities to investigate cases where goods are found not to have been complied with the conditions under which their export was permitted at the reduced rate of duty or free of duty. The decision in Zenith Tin Works v. Collector of Customs [1995 (75) E.L.T. 865 (Tribunal) = 1994 (55) ECR 137] the Tribunal dealt with a situation in which the goods imported did not tally with the goods permitted for import in respect of technical characteristics. The other decisions do not have any relevance as far as importability is concerned as cited by the departmental representative. 10. One aspect which was argued during hearing was the condition on the reverse of the licence, which provided that, licence was subject to the condition in regard to goods and including the issue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat legislation by incorporation takes place when the provisions of one statute are incorporated in a second statute. In such a situation, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the latter Act you have no occasion to refer to the former Act at all. In De Wood s Estate [(1886) 31 Ch D 607] applying this principle to the present case we do not find that there has been any legislation by incorporation. The DEEC book, is not the authority for granting exemption from Customs duty. As we have observed earlier, the advance licence provides exemption from prohibition on imports and the Customs notification provides exemption from duties. The DEEC book is not by itself an authority either for importation of goods or for exemption from duties. It is more in the nature of a record specifying the nature and types of import and export material, and the dates, quantities and other particulars of goods imported and exported. Since the DEEC book itself is not a legal authority for providing exemption, it cannot incorporate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
