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TMI Blog1990 (3) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Authorities issued two Show Cause Notices to the Petitioners in respect of the said two consignments, asking the Petitioners to show cause why penal action should not be taken against them and the goods confiscated under Section 112 and Section 111 (d) of the Customs Act, 1962. The Petitioners, by their letter dated 7-7-1988, replied to the said Show Cause Notices. In the said reply, the Petitioners contended that the consignments consisted of seeds of almonds and hence were covered by the two licences produced by them. 4. The Additional Collector of Customs, Bombay, by two orders, both dated 26-7-1988, held that the two consignments were not covered by valid licences and hence the two consignments were confiscated. However, an option was offered to the Petitioners to clear the goods on payment of a redemption fine of Rs. 6,00,000/-, the option to be exercised within 30 days of the date of the order. The Additional Collector of Customs, Bombay also imposed a penalty of Rs. 50,000/- on the Petitioners, for attempting to import goods against invalid licences. The Petitioners have impugned this order of the Additional Collector of Customs, Bombay dated 26-7-1988 in this Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eshy pulp surrounding the seed of pome and stone which had been picked at full ripeness and dried either, after splitting, in the sun or whole in drying chambers. Almonds were the seeds of almond tree. The Petitioners next relied on a Certificate issued by the Director of Horticulture, Maharashtra State, Pune, Shri S.V. Jayawant. It was stated in this certificate that the common practice followed in propagating almond was to raise the plants from the seed of thin shelled varieties and plant the seedlings. The Petitioners have lastly relied on a Certificate issued by Professor K.C. Sheriar, Principal, Head of Biology Department, Jai Hind Collage, Bombay. It was stated in the said certificate that almond seed with the stony hard shell could be used for propagation. In botanical terms, almond seed could not be called dried fruit. 7. Shri Taleyarkhan then relied on a brochure issued by the Almond Board of California, which stated that although not all nuts were seeds, almond belonged to this food family. Shri Taleyarkhan drew my attention to the Encyclopaedia Britannica, Volume 1, 15th Edition, page 289, where almond has been described as - almond tree native to south-western Asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd those of the Customs Authorities were different and the Customs Authorities could not impinge upon the jurisdiction of the Licensing Authority, Shri Taleyarkhan relied on a ruling of the Supreme Court in the case of Union of India v. Tarachand Gupta Bros., A.I.R. 1971 S.C. 1558; wherein it was observed :- "The result is that when the Collector examines goods imported under a licence in respect of goods covered by entry 295 what he has to ascertain is whether the goods are parts and accessories, and not whether the goods, though parts and accessories, are so comprehensive that if put together would constitute motor cycles and scooters in C.K.D. condition. Were he to adopt such an approach, he would be acting contrary to and beyond entry 295 under which he had to find out whether the goods imported were of the description in that entry. Such an approach would, in other words, be in non-compliance of entry 295." 12. Shri Taleyarkhan also relied on a ruling of the Bombay High Court in the case of Loksh Chemical Works v. M.S. Mehta, Collector of Customs (Preventive) Bombay Others, 1981 (8) E.L.T. 235 (Bom.), wherein the learned Single Judge was pleased to state :- "The effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by or under the order :- (a) the import, export carriage coastwise or shipment as ships stores of goods of any specified description; (b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried." 15. Section 3 of the Imports (Control) Order, 1955 is relevant and it provides :- "3. Restriction of Import of certain goods. - (1) Save as otherwise provided in this Order no person shall import any goods of the description specified in Schedule I, except under and in accordance with a licence or a Customs clearance permit granted by the Central Government or by any Officer specified in Schedule II." Sub-section (3) of Section 3 of the Imports (Control) Order, 1955 is in the following terms :- "(3) If in any case, it is found that the goods imported under a licence do not conform in every respect :- to the description or value of the (i) goods as contained in the licence; or to the other (ii) conditions relating to such goods, as contained in, or applicable to the licence, the import of such goods shall be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlite horticulture grade and vermiculate." For the purpose of this discussion, clause (d), which includes seeds/bulbs/mother plant and germ plasm, is material. Clauses (d) and (e) have been enumerated in both the licences. Therefore, the importer under these licences could import either seeds or bulbs or mother plant or germ plasm or items mentioned in clause (e). 18. Shri Taleyarkhan has contended that since almonds were seeds as shown by him with the support of the statements in the dictionary, the brochures and the Encyclopaedia Britannica, the two consignments were covered under the REP licence. Shri Taleyarkhan argued that there need be no relation between the exported products with the product imported under a REP (replenishment) licence. On this aspect, Shri Taleyarkhan does not appear to be quite correct for the reason that Appendix 17, Paragraph 8, which enumerated general conditions, made the position abundantly clear that only such items could be imported which were in some way related either as raw material, or components or packing with the product exported. The relevant portion of Paragraph 8 is as under :- "Therefore, in such cases, while applying for REP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industrial or medicinal plants; straw and fodder'. Item 12.02, as I have pointed out heretofore, dealt with ground-nuts. Item 12.05 dealt with rape-seeds or colza-seeds. From item 1206.00 to item 1209.29 dealt with different types of seeds. It is pertinent to point out that in none of these items, containing different types of seeds, are almonds included. However, what is more important is that there is a note at the commencement of Chapter 12 which reads as follows:- "1. Heading No. 12.07 applies, inter alia, to palm nuts and kernels, cotton seeds, caster oil seeds, sesamum seeds, mustard seeds, safflower seeds, poppy seeds and shea nuts (karite nuts). It does not apply to products of Heading No. 08.01 or 08.02 or to olives (Chapter 7 or Chapter 20)." Therefore, the note makes it abundantly clear that items 08.02 which deal with almonds, in-shell or shelled, will not fall under Chapter 12. 23. On a perusal of the provisions of Chapter 8 and Chapter 12 of the First Schedule to the Customs Tariff Act, 1975, there can be no doubt that almonds could not be classified as seeds under Chapter 12. They must, therefore, of necessity, be classified under Chapter 8, under item 08.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bill of entry should include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. Therefore, a bill of entry is a document which facilitates the clearance of the goods for home consumption. I have referred to the Bill of Entry in the instant case only to show that even the Petitioners at the time when they wanted to clear the goods, they had classified the goods under item 0802.11, which related to almonds in-shell. 28. Shri Taleyarkhan has produced before this Court a number of certificates, brochures and extracts from the Encyclopaedia Britannica to show that almonds were seeds. Now, in gauging the classification, the Court must first consider the classification made under the relevant Acts which were applicable, like the Import Export Policy, for the reason that the two licences were issued under Clause G 2(i)(a) of Appendix 17 of the Import Export Policy. Therefore, one has to refer to the provisions of the Policy. When the classification is contained in the Customs Tariff Act, 1975, one must, of necessity, refer to the classification contained therein and in case of any doubt or ambiguity only, can one refer to other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the instant case, the Tariff Entry with regard to almonds appears by itself. There is no ambiguity or complexity about the term which would require a departure from the common principle of commercial nomenclature or resorting to a scientific or technical meaning. As I have pointed out, the Tariff Entry 0802.11 makes it sufficiently clear that almonds fall under Chapter 8 and not under Chapter 12, which covered all kinds of seeds. That being the case, the submission made by Shri Taleyarkhan that almonds were seeds and, therefore, covered by the two REP licences granted under Clause G.2(i)(a) of Appendix 17 of the Import Export Policy must be rejected. The two consignments imported by the Petitioners are not covered by the REP licences relied on by the Petitioners. There appears to be no reason for interfering with the order passed by the Additional Collector of Customs, Bombay. 31. Finally, Shri Taleyarkhan submitted that I should set aside the redemption fine of Rs. 6,00,000/- as also the penalty of Rs. 50,000/-. Once it is found that the goods were attempted to be cleared under an invalid licence, this Court under its writ jurisdiction cannot, on any ground, interfere wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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