9911796707
TMI Blog1984 (7) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... o Complex (Import), the respondent No. 3. Pending processing of the documents by the Customs Authority, the said goods were removed to bonded warehouse on January 11, 1983. The Customs Authority released the said goods on 22nd February, 1983. As the consignee of the said goods found it difficult to arrange for nearly ₹ 12,00,000/-at a time, being the Customs Duty on the said goods, at the request of the petitioner the said Bill of Entry for home consumption was converted into Bill of Entry for warehousing. The petitioner was permitted to make part payment of the duty and to take part delivery of the said goods. The said goods being drugs, the customs authorities drew samples from the said goods for test. High Seas Sale Declaration showing the sale of the said goods to M/s. Flemming (India) was produced before the Customs Authorities on 5th May, 1983. Pending testing of the said goods the petitioner gave a letter of guarantee not to dispose of the said goods without the consent of the Collector of Customs, the respondent No. 1. The samples drawn from the said goods were found to be of standard quality. By a letter dt. 27th November, 1983 addressed to the Assistant Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have agreed to such a course being followed. 4. The licence in question for import of the said goods was issued on 14th March, 1980. The licence is covered by the Import Policy of 1979-80. The licence has been issued with the following endorsement. "This licence is valid for the import of the items appearing in Appendices 5 & 7 excluding the items appearing in Appendix 26, subject to the conditions that the import of a single item should not exceed ₹ 2 lacs in value as per paras 174(3), 174(5) and 174(6) of AM 80 Import Policy." The said licence was revalidated on 15th June, 1982 with effect from 11th June, 1982 for 6 months i.e. up to 31st December, 1982. While validating the said import licence, further condition has been imposed that "during the extended period of shipment this licence will be subject to the provision made in paras 231(1), 231(2) and 231(4) of Import Policy 1982-83. The instruction contained in para 185(7) of Import Policy 1982-83 shall also apply." 5. It is not in dispute that the licence in question is an additional licence granted to the Export House. Para 174(3) of the Import Policy of 1979-80 provides that the additional lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82 will be valid for import of raw materials etc. (including items covered by Appendix 5 which can be imported under Open General Licence by Actual Users (Industrial) under the Import Policy 1982-83. 8. It is significant that although the restrictions contained in paras 231(1), 231(2) and 231(4) have been specifically endorsed at the time of re-validation of the said licence, no restriction has been imposed in terms of Para 231(3) of the Import Policy of 1982-83. Para 231(3) of 1982-83 Policy is in the following terms : "REP licence and Additional Licence held by Export Houses/Trading Houses will cease to be valid for import of any item which could be imported under Open General Licence during 1981-82 but is no longer so in this Import Policy." The aforesaid restriction has not been made applicable in respect of the present licence. Accordingly there cannot be any bar in the import of the item in question. It may be mentioned that item Amoxycillin Trihydrate was not a canalised item under 1979-80 Policy but was only canalised on 16th October, 1981 under the Policy of 1981-82. Under para 185(7) of 1982-83 Policy, import of item under Open General Licence by Export Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Drug) of Appendix 9 of the 1981-82 Policy was amended to include Amoxycillin Trihydrate as a separate item along with Amoxycillin by the amendment made on 16th October, 1981. The description in Appendix 5 Part B of the Current Policy (1984-85) also reads as Amoxycillin (including Amoxycillin Trihydrate) excluding Amoxycillin sodium. The Department also treated the said items as two different items which will appear from the records (File No. S 43-71/82 CCI). Therefore, Amoxycillin Trihydrate not being a canalised item and not being included in Appendices 3 and 5 of 1979-80 Policy was covered under Open General Licence. As indicated earlier the licence in question is an additional licence which entitles the importer to import raw materials in terms of Para 174(5) of Import Policy for the year 1979-80 read with Serial No. 1 of Appendix 10 thereof. Appendix 10 of 1979-80 Policy mentions of raw materials and components etc. other than those included in Appendices 3, 5, 8 and 9. Amoxycillin Trihydrate is a raw material for preparation of other drugs. This fact has also been admitted by the Department in their records which have already been referred to. Thus the Amoxycillin Trihydrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear findings which are binding on the subordinate authorities that the licence issued during a Policy period is governed by that policy as amended up to the date of issue of the licence and amendments made after the date of issue do not have any application to the licences. The Board is also in agreement with the contention of the appellants that the Additional Collector was wrong in referring to the general condition subject to which import licences are issued applying prohibitions or regulations imposed under other enactments to the imports under the licence. In the facts of the case, as the restriction sought to be imposed is not under other enactments, but under the very Imports (Control) Order under which the licences were issued, the Additional Collector's interpretation was wrong. The Board also finds that in the Government's Order No. 28-2-80 cited by the appellants relating to an importation to which provisions of para 210 of the Import Policy for 1978-79 applied, a view has been taken by the Government that the restriction was not applicable to the licences issued earlier and the provisions of that paragraph generally correspond to the provisions in para 222(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Notice No. 51-ITC (PW)/81 dt. 16-10-81 and hence cannot have a retrospective effect. Even during the re-validation period, the restriction has been only with reference to sub-paras (1), (2) and (4) of para 231, sub-para (3) has been specifically omitted to be mentioned there which restricts the OGL items, In view of this, the licence may be accepted." 19. It may be mentioned that the Appraiser in his note also took into consideration the fact that the Amoxycyllin Trihydrate had been cleared by the Bombay Customs House under a similar licence. Thus the licence of the petitioner was accepted by the Collector. Similarly another licence for similar items in the case of Jayanti Oil Mill Private Limited was also accepted by the Customs Authorities. It is also pertinent to mention that the first clearance was made under the said licence on the basis of the order of the Collector dt. 27th December, 1982 referred to above. Thereafter, the part consignment was released by the Deputy Collector by the order dt. 13th January, 1983. He has followed the order of the Collector. He observed that the goods had been detained in the airport since 7th December, 1982 and as such quick clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised list and was no more under OGL for actuai user. Such a licence was accepted as per Collector's in File No. S. 43-71/82 C.C.I. placed below, On the basis of Collector's order in two other cases similar licence was accepted under the orders of A.C. and D.C. In this connection, kind attention is drawn to Collector's order in note sheet IX of File No. S. 43-71/82 CCI for making a reference to the Board for orders to file an appeal to the Tribunal against Collector's order for accepting the licence. The reference in that file has been made on 14-3-84. But no order for filing an appeal to Tribunal has yet been passed by the Board. In the meanwhile the Board has asked for a copy of the order dt. 27-12-82 passed by Collector of Customs, Calcutta. The time limit under Section 129D for passing an order by Collector or by the Board for making a reference to both (Appeals) or to the Tribunal has been reduced from 2 years to one year vide Finance Bill, 1984. This bill has received the President's assent on 7-5-84 and has become the law from that date. It appears any order by the Board for making a reference to the Tribunal in the case where Collector passed an order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Collector or the Deputy Collector. So long as the order of the Collector of Customs is not set aside, all the subordinate officers are bound to follow the said order. Simply because reference has been made to the Board for permission to prefer an appeal against the order dt. 27th December, 1982 of the then Collector, there cannot be any ground for withholding the release of the goods in question. It is for the Tribunal to consider whether any stay should be granted or not, if an appeal for stay is made before it by the Revenue. The view taken by the Board is that the goods are not liable to confiscation even if there is any violation of the import policy. It is for the Chief Controller of Imports & Exports to take appropriate decision in the matter. It is very surprising how the Collector could act contrary to the decision of the Board rendered as an Appellate Authority. It also appears to be somewhat unusual and contrary to the Departmental practice that while writing to the Board on 14-3-84, the present Collector did not even refer to the Appellate order of the Board relied on by the then Collector in his order which is sought to be reviewed by him. In all fairness he shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order passed by the Collector of Customs accepting the licence against which an appeal to the Tribunal has been proposed. The Collector (Appeals) cannot decide the legality or propriety of any order passed by the Collector of Customs. It is to be decided by the Tribunal. Therefore, direction for filing an appeal from the order of the Assistant Collector and Deputy Collector before the Collector of Customs (Appeals) is misconceived and cannot be a ground for withholding the release of the goods. 27. I have not been able to appreciate the remarks in the aforesaid note that "the party may submit another valid licence, if any". If it is the contention of the Customs Authorities that the goods in question are canalised items then there cannot be any licence for import of such goods by any one other than the State Trading Corporation. It is not in dispute that the licence which the petitioner is having is a valid licence. The material in question can be imported under the licence and the restrictions contained in the 1984-85 Policy will not apply. The licence for import was issued on 13th April, 1980 and the restrictions if any till the date of issuance of the licence and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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