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TMI Blog2003 (1) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Chief Controller of Imports and Exports, from time to time". Same thing is stated in Import-Export Policy of the year 1982-83. In this view of the matter, it is apparent that respondent knowing fully well the import policy imported prohibited goods i.e. import of canalised item namely beef tallow and, therefore, the Collector was fully justified in imposing the penalty under Section 112 of the Customs Act. Appeal allowed. The judgment and order passed by the Collector of Customs is restored. - 4958 of 1994 - - - Dated:- 31-1-2003 - M.B. Shah and Arun Kumar, JJ. [Judgment per : M.B. Shah, J.]. - The question involved in this appeal is - whether import of Beef Tallow under Open General Licence (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Import Trade Control Public Notice dated 5th June, 1981 that existing description 'mutton tallow' under Entry 44 Appendix 8 is to be read as 'tallow of any animal origin including mutton tallow'. 5.Hence, on 15-7-1983, the Department issued show cause notice to the respondents. After receiving the reply and after hearing the respondents, the Collector of Customs, Bombay on 20th December, 1983 passed an order relevant part of which reads thus: — "I order that the consignments of beef tallow imported by M/s. Jain Shudh Vanaspati Ltd. for which they had presented the Bills of Entry listed in Annexure-I to this order, be confiscated under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of Imports and Exports (Control) Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92-C, dated 18th February, 1992 allowed the appeal and held that the import of beef tallow under OGL was not unlawful and, therefore, question of confiscation or redemption fine or imposing personal penalty under Section 112 of the Customs Act will not arise. 7.That order is challenged by filing this appeal. 8.We would first deal with the contention raised by the learned senior counsel Mr. Sanghi appearing on behalf of the respondent that once the imported article is re-exported as directed by the department, there is no question of levying any penalty or redemption fine. In our view, this submission is without any substance because confiscation of goods and thereafter permitting the respondent to re-export the same would not mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit." 10.From the aforesaid two sections, it is apparent that both operate in different fields, namely, one requires imposition of penalty and other provides for confiscation of improperly imported goods. Section 111 provides that goods brought from the place outside India are liable to confiscation if the goods are improperly imported as provided therein. In cases where goods are liable to confiscation, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appendix 5 which is the canalised item and such cannot be allowed to be imported against additional licence granted pursuant to the order of this Court dated 18th April, 1985." 13.Further, in D. Navinachandra Co., Bombay v. Union of India [(1987) 2 SCR 989] this Court held thus :- "The items had to pass through two tests, firstly, they should have been importable under the import policy 1978-79 and secondly, they should also have been importable under the import policy 1985-88..... Canalised items are those items which are ordinarily open to import only through a public sector agency ....." 14.The aforesaid aspect was further considered in M/s. Darshan Oils Pvt. Ltd. v. Union of India [(1994) Supp. 5 SCR 278], wherein this Court he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported a prohibited item. It is also to be stated that respondent was experienced Export House well versed in the policies and procedure in regard to the import and export of goods as noted by this court in other matter of respondent. [Re: Jain Export Ltd., and Others v. Union of India [(1993) Supp. 1 SCR 185]. 17.Apart from the aspect that respondent was well versed with import and export policy, Section 3 of the Import Control Order 1955, inter alia specifically provides that no person shall import any goods of the description specified in Schedule 1 except under and in accordance with a licence. The Collector has also referred to the conditions of licence and has observed that :- "The first condition on the reverse of the licence sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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