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TMI Blog1981 (3) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs, Appraising Deptt. Group IV-C issued two show cause notices dt. July 6, 1979 to the petitioners to show cause why penal action should not be taken for unauthorised import of the cartridges. The show cause notice recites that the Import Licences of petitioners do not cover the goods imported as the import of .12 bore ammunitions containing multiple projectiles the longest dimension of which exceeded 5 mm. was not allowed. 3. The petitioners gave their explanation to the show cause notices by letter dated July 16,1979 claiming that the condition of the projectiles dimensional length of 5 mm. was applicable only to cartridges .12 bore 2½ " size and not to cartridges .12 bore 211/16" size. The petitioners did not dispute that the projectiles dimensional length of the cartridges imported was in excess of 5 mm. The petitioners claimed that the entry in Column (ii)(a) in Column 4 in Entry No. 93.01/07(2) of the Import Trade Control Policy was not applicable to the cartridges imported. The Assistant Collector of Customs by his order dated November 5, 1979 turned down the contention of the petitioners and passed an order confiscating the imported cartridges under Section 111(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sworn on April 14,1980 and reiterated the grounds given by the Government while passing the impugned order dated April 28,1980. According to the Government, the relevant entry covers all ammunitions containing multiple projectile the longest dimension of which exceeds 5 mm. It is claimed that the size of the cartridges is not relevant and the size of the imported cartridges, which is 211/16" should be treated as equivalent to 2½". It is further claimed that the expert opinion, which was taken into consideration by the Government of India, clearly indicates that the cartridges imported by the petitioners can be used for a .12 bore gun with 2½" chamber. The respondents also claimed that if the two views are possible, then it is not permissible for this Court to substitute its judgment over that of the Government. 7. Before considering the submission of Shri Desai, appearing in support of the petition, it is necessary to set out the relevant entry. The entry 93.01/07 is included in Section IV of the Import Trade Control Policy. The entry reads as follows: "93.01/07: Arms and ammunition; parts thereof: (2) Cartridge cases filled and empty (S.No. 317/IV of old ITC Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it reads as follows : "Cartridges SA 12 bore 2.1/2" all shot sizes and any ammunition containing multiple projectiles the longest dimension of which exceeds 5 mm." Shri Desai did not dispute that the cartridges imported by the petitioners contain multiple projectiles, the dimension of which exceeds 5 mm. What is urged by the learned Counsel is that the size of the cartridges is 2.11/16" and therefore clause (a) is not at all attracted and there is no ban on the import of cartridges of such size. March 25,1981 8. Shri Shah, the learned Counsel appearing on behalf of the Respondents 1 and 2, on the other hand submits that the relevant entry does not stop by mentioning size of the cartridges only, but it goes further and disallow or prohibits import of any ammunition containing multiple projectiles the longest dimension of which exceeds 5 mm. In other words, what Shri Shah submits is that the entry should be split up into two parts, first cartridges SA 12 bore 2½ " all shot sizes, and secondly any ammunition containing multiple projectiles the longest dimension of which exceeds 5 mm. The entire controversy centres around on the issue as to whether the entry could be split up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the small arms. It is not permissible to import other notions while giving effect to the plain meaning of the entry which bans certain items. 11. Shri Shah then submits that even assuming that the size mentioned has reference to the size of the cartridges and not to the size of the chamber of the small arms, the prohibition would not be limited to the cartridges of 2½" only but would exclude cartridges of all sizes. The submission was developed by contending that the cartridges of 2.11/16" should be deemed to be of equivalent size to that of 2½ ". Reliance was placed on the Dictionary meaning of the expression 'equivalent size' and it was urged that 'equivalent' has been defined as equal in value, having the same result. It is urged that the cartridges of 2.11/16" could be used in respect of chamber having the size of 2½", and therefore, the use of cartridges imported by the petitioners can be made in respect of arms having 2½ " size of chamber. The submission of Shri Shah is not correct. The expression 'equivalent size' also presupposes that the other article correspond to the article with which it is compared. It is difficult to assume that a cartridges of 2.11/16" is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Defence there may be no objection to allow clearance of cartridges .12 bore 2.11/16" in sizes against the above-mentioned import licences." It is urged by Shri Desai that the Government has consistently permitted the import of cartridges having 2.11/16" size all along and the petitioners are importing the said cartridges from the year 1974 onwards and at no stage the petitioners were prevented from doing so. Shri Desai also relied upon the fact that the import of such cartridges was permitted by the authorities in respect of several other importers. From the order dated November 10,1976 passed by the Appellate Collector and copy of which is annexed as Exh. C to the petition, it does appear that the Customs Authorities have consistently permitted the importers to import cartridges having size of 2.11/16" although the identical entry was in existence for several years. Shri Shah submits that subsequent to the import by the petitioners the relevant entry has been altered and cartridges of any size are included in the ban items. Considering all the pros and cons of the matter, in my judgment, the order passed by the Government of India on April 28,1980 in exercise of its powers und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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