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TMI Blog2003 (8) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... .90 under Bills of Entry filed on different dates in the year 1999. They had no specific licence for the imports. The Department took the view that the imported goods were not dried garlic falling under ITC (HS) Heading 071290.04 but fresh garlic falling under ITC (HS) Heading 070320.00, which was a restricted item, for which specific import licence was required. The importers waived show cause notice and obtained clearance of the goods on the basis of orders passed by the proper officer of customs. In a few of these cases, the Commissioner of Customs was the proper officer, while, in the rest of the cases, the Additional Commissioner of Customs was the proper officer. The Commissioner or the Additional Commissioner, as the case may be, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on by the department in these cases to deny the benefit of the above ITC (HS) heading to the appellants in respect of the goods in question, learned Counsel submit that the Tribunal (West Zonal Bench) has held that the circular is not valid and binding as it does not indicate that any doubt had arisen before the DGFT for clarification. The Tribunal has also held that, where any garlic under import is known as dry garlic in commercial parlance, it should be so classified for ITC (HS) and Customs Tariff purposes. The decision cited by the Counsel is the one rendered by the West Zonal Bench in the case of J.B. Impex v. CC, Nhava Sheva [2001 (134) E.L.T. 210 (Tri. - Mumbai)]. It is, further, submitted that various co-ordinate benches of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in Aero Leather Pvt. Ltd. [2003 (154) E.L.T. A98 (S.C.)] as well as in Collector v. Bhadrachalam Paper Boards Ltd. [1991 (55) E.L.T. A67 (S.C.). While, in the former case cited by the DR, the Apex Court held that an amendment of the Income-tax Act by the Finance Bill 1999 was clarificatory and hence had retrospective effect, in the latter case, it was held that an amendment brought about by an amending notification (No. 214/84-C.E.) was clarificatory and retrospective. Adverting to the description of the goods, learned DR refers to Section Note 2 in Section I of ITC-HS Classification on Import items . This Section Note says that except where the context otherwise requires, throughout this Schedule, any reference to dried products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation that any doubt in relation to dried garlic was referred to the DGFT; (b) dried garlic cannot be equated to dehydrated garlic. 6. Having considered the judgment of the WZB in J.B. Impex, we think, it is necessary to have a fresh look at the text of the DGFT s circular extracted below :- It is hereby clarified that Dried Garlic classified under Exim Code No. 071290.04 ITC (HS) Classification, 1997-02 would be treated as Dried Garlic provided the moisture content thereof does not exceed 10%, irrespective of the method of drying. This issues with the approval of DGFT . 7. The source of authority for the above clarification is Para 4.13 of the EXIM Policy, 1997-2002, which reads as under :- If any question or doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DGFT happened to be issued in such a situation. It is true that the circular does not say as to who referred the question for clarification to the DGFT. Nevertheless, in our considered view, this omission (if at all it is one) cannot detract from the legal validity and binding effect of the clarification rendered by the DGFT in exercise of his authority conferred by Central Government under Para 4.13 of the EXIM Policy. In this context, we may usefully refer to Section 114 of the Evidence Act, which enables Courts to presume that all official acts have been regularly performed. This rule of evidence is, in our view, equally applicable to tribunals/authorities discharging quasi judicial function. The above presumption, of course, is rebut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court regarding retrospective effect of statutory provisions/notification which are clarificatory. The DGFT circular dated 17-9-99 calls itself EXIM Policy clarification circular . A clarification of any provision of EXIM Policy must be applicable to that provision from the date of its commencement. This proposition is apparently supported by the Apex Court s decisions cited by the DR. 10. We have, in these appeals, taken a considered view which is but contradictory to decisions taken by other co-ordinate benches in similar cases. Therefore, as judicial discipline requires us to do, we have to refer the conflict to a Larger Bench. Accordingly, we direct the Registry to place the papers before the Hon ble President for constituting a L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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