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TMI Blog1990 (7) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... tem allowed for import under the said licence are seeds, pulps, mother plant and germ plasm. Samples were drawn from the goods and sent to the State Horticulture Officer for test. The Officer concerned certified that the goods were seeds fit for germination and viable for sowing. As almonds are dry fruits as known in the trade and are also consumer item of agricultural origin falling under S. No.121 of Appendix 2 (b) of ITC Policy, the Customs House issued a query memo. The Dy. Collector of Customs, Madras, heard the appeals and held that the goods imported cannot be held to be covered by the REP licence produced by the petitioner and treating the imports as unauthorised, ordered the confiscation of the consignment under Section 111 (d) of the Customs Act, 1962 levying a redemption fine amounting to 80% of the c.i.f. value in each case. However, he did not impose any personal penalty on the petitioners. The Collector of Customs, Madras, meanwhile, exercising his powers of review under Section 129D(2) of the Customs Act called for the records of the proceedings before the Dy. Collector and he found that the order of the Deputy Collector needed review since, while holding that the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard together and disposed of by a common order. 3. Learned senior counsel appearing for the petitioners, Mr. Habibulla Pasha, mainly submitted that the Tribunal erred in proceeding on the assumption that it is only against the export of dry fruits that almonds in shell could be imported without any basis. Further, the Tribunal failed to decide whether the goods imported would fall under the category of 'Seeds' and without applying its mind, presumed that almonds in shell are dry fruits and they could be allowed to be imported only against the import of dry fruits. He would submit that the Tribunal failed to note that the description in Appendix 2B is generia in nature. The description of 'seeds' under Appendix 17 is specific. Once the goods are specific in nature, then they will not come within the mischief of Serial No. 121 of Appendix 2B. The items coming under Serial No. 121 of Appendix 2B can also be imported if they are allowed under Appendix 17. Further, clause 5 of Appendix 17 clearly mentions that if the goods are specifically mentioned in column 4 of Appendix 17, then the goods could be imported even though they may find a place under Appendix 2-B. This aspect has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Import Control Policy. Since Lavang, Dalchini etc. were imported as 'crude drugs' under the Import Policy, Poppy Seeds had been allowed to be imported under the said Category. Hence, the learned counsel would submit that the finding of the Tribunal that the goods imported are only dry fruits and they are not seeds is misconceived and untenable. The learned senior counsel also submitted that under Section 129D(2) of the Customs Act, 1962, the Collector of Customs has to examine the decision or order passed under the Act for the purpose of satisfying himself as to the legality or propriety of such order. Further, the order cannot be said to have become final, unless it is communicated as per the provisions of Section 153 of the Customs Act. In the instant case the order itself was despatched on 11-12-1987. When such is the case, the question of the Collector of Customs, Madras, applying his mind to the order and question of filing appeal on 18-11-1987 do not arise. According to the learned counsel, the impugned order would be effective only if it is communicated. There was no order which could have been examined by the Collector of Customs under Section 129D(2) till 11-12-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be prepared as per the provisions under Section 129D(2) of the Customs Act. In the instant case, the Grounds of Appeal which has already been prepared by the Assistant Collector, shows that the Collector of Customs has not applied his mind under Section 129D(2). The Tribunal has failed to consider the various case-laws relied on by the petitioner and has failed to exercise the jurisdiction vested in it properly. He would submit that the Tribunal erred in observing that because the petitioners participated in appeal proceedings after having received the order of adjudication, they cannot claim to have suffered any prejudice merely because the order in adjudication was not made available to them as and when the same was reviewed by the Collector. According to the learned counsel, the Tribunal.........in stating that even without reference to the Chief Controller of Imports and Exports (Clarification), the Collector of Customs (Appeals) in his order has considered the fact that almond was a consumer item covered by Item 2 Part B of I.T.C. Policy. According to the learned counsel, the functions of the Collector under Section 129-D(2) are quasi-judicial in nature and as such, the Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88-1991 that dry fruits were included in the item of seeds. 7. Further, it is a general rule of construction that a specific entry would prevail over a generic entry. Serial No. 121 of Appendix 2, Part B, is a generic entry, which covers all consumer goods, howsoever described of industrial, agricultural or animal origin, not appearing individually in Appendix 3 Part A and 5 or specifically listed for import under Open General Licence. If this restriction is to be applied, then nothing can be imported. Both sides admitted that if the items specifically find a place under Appendix 17, then notwithstanding the prohibition under Appendix 2 Part B the goods can be imported. 8. Further, in the instant case, admittedly, the Department, itself had consulted the Horticulturist because there was a doubt as to whether the goods imported can be classified as 'seeds'. The Deputy Collector, the Appellate Authority, namely, the Collector (Appeals) and the Customs, Excise and Gold (Control) Appellate Tribunal have also accepted the fact that the Horticulturist has given the opinion to the effect that the goods imported which are the subject-matter of the proceeding, were fit for germination a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e importers with regard to the description of goods in that case. The alleged admission in that case cannot be used against the petitioner in this case. On a careful analysis of the materials, it is seen that the Tribunal has not given valid and sufficient reasons for rejecting the claim of the petitioner that the goods imported are 'seeds'. In this connection, the learned counsel for the petitioner submitted that if two views are possible, then the one in favour of the assessee should be accepted and it has been so held by various High Courts and the Supreme Court. The learned counsel for the petitioner drew the attention of this Court to the decision reported in Tamil Nadu Papers Ltd. v. Appraiser, Madras Customs [1988 (33) E.L.T. 22 (Madras) rendered by Nainar Sundaram, J.] Wherein in Para 4 it was held as follows :- "The second principle which helps the case of the petitioner is the rule of construction of fiscal law. Whenever there is an ambiguity on the question of construction of fiscal law, it is well-settled that it has got to be resolved in favour of the tax payer rather in favour of the Revenue. If the case could be brought within either of the two provisions, it is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the order on the said ground, as rightly contended by the learned counsel for the petitioner when the said classification and the report of the Chief Controller of Imports and Exports is not before the Collector. Il is too much to rely on the same which was produced in some other case, M.M. Exports v. Collector of Customs, Madras. On a careful analysis of the entire materials, I find much force in the contention of the learned counsel for the petitioner that the order of the Tribunal is without jurisdiction and it suffers from errors apparent on the face of the records, and as such the contention of the learned counsel for the petitioner that the goods imported were seeds has to be accepted. 11. As far as the second point is concerned, the learned counsel for the writ petitioner challenged the maintainability of the appeal filed by the Collector of Customs (Appeals) against the order of the Deputy Collector on various grounds. In the first instance, it is submitted that there was no order when the appeal was filed before the Appellate Collector on 18-11-1987. The impugned order passed by the Deputy Collector, though dated 9-11-1987, admittedly was despatched only on 11- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against a Government servant and while interpreting Article 166 of the Constitution of India with regard to the action taken by the Council of Ministers, the question which arose for consideration is, when the order would be effective. In this connection it was held : "Constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor, whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Learned, it is possible that after expressing one opinion about a particular matter at a particular stage, a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Therefore to make the opinion amount to a decision of the Government, it must be communicated to the person concerned. It is of the essence that the order has to be communicated to the person who would be affe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule that where a power is given to be a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of lime. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind Appeal 372 = [AIR 1936 PC 253 (2)] and later by this Court in several cases, Shiv Bahadur Singh v. State of V.P., (1954) SCR 1098 = (AIR 1954 SC 322 = 1954 Crl. LJ. 910); Deep Chand v. State of Rajasthan (1962) SCR 662 = [AIR SC 1527 = 1961 (2) Cri. LJ. 705] to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applied "Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to be the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-363." The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the Legislature to prohibit the verification of the surrender in a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the appeal filed on the basis of such an order is without jurisdiction and not maintainable. The learned counsel also submitted that the Collector of Customs has not formulated any point arising out of decision of order and has not directed the adjudicating authority to apply to the Collector of Customs (Appeals). Further, the points found in the grounds of appeal are not found in the order of the Collector of Customs under Section 129D(2) of the Customs Act. The learned counsel would submit that the Assistant Collector has no jurisdiction to file an appeal and incorporate various points which were not mentioned by the Collector. On going through the relevant provisions of Section 129D(2) and the order of the Collector under Sec. 129D(2) I find that there is every force in the contention of the learned counsel for the petitioner in this regard. The mere fact that the Dy. Collr. has exercised his discretion wrongly and the duty levied which, according to the Collector, is low is not a ground for invoking the provision of Sec. 129D(4) especially when no mala fide is attributed to the Dy. Collr. of Customs who passed the impugned order of adjudication. There is no order or directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order and from the file, they found that the Collector has called for and examined the file and found that the Deputy Collector had omitted to consider the high margin of profit enjoyed by the goods and had misdirected himself on the basis of certain cash bills of goods with regard to the price of goods. In this connection, the learned counsel submitted that the order of the Collector does not contain the same and the Tribunal is not justified in supporting the deficiency in the order while upholding the same. In this connection the attention of this Court was drawn to three decisions. In Mohinder Singh v. Chief Election Commissioner (AIR 1978 SC 851) it was held that "when the impugned order does. not assign reasons, it is not open to the State which had failed to disclose the reasons in the order, to make good its omission by disclosing them in the affidavit filed in a writ petition. When a statutory body is conferred with the power to consider the grant of exemption, then the statutory body functions a quasi-judicial authority." In Prabhudas Kumar Vaishya v. Union (1967 Maharashtra Law Journal 981), Their Lordships of the Suprme Court have observed as follows : "In our view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence it cannot be said that the method adopted by the Deputy Collector is improper and illegal. The learned counsel vehemently argued that the order of the Collector under Section 129D(2) of the Customs Act does not whisper in any way that the order of the Deputy Collector suffers from illegality or impropriety. According to him, for all these reasons the appeal itself is incompetent. I find every force in the contention as in the instant case none of the statutory requirements for filing appeal was followed and the Collector has not exercised his power under Section 129D(2) of the Customs Act properly. The impugned order is vitiated on all these grounds. In view of my findings on both the points, the writ petitions are to be allowed. 15. In the result, all the writ petitions are allowed, Order No. 606 of 1988 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, dated 2-12-1988 is hereby quashed and the second respondent namely, the Collector of Customs, Madras, is directed to refund the redemption fine and personal penalty already paid by the petitioner. However, in the circumstances of the case, there is no order as to costs in these writ petitions. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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