9911796707
TMI Blog1994 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... with Clause 8 of Appendix 20 were entitled to claim the import replenishment as were permissible to registered exporters. The petitioners arranged for import of 1,000 M.T. of Animal Tallow and entered into contract with M/s. M.W. Harvey Ltd., a company at London on February 21, 1983. The imported items arrived at Bombay Port on April 27, 1983 and the petitioners filed four bills of entry for clearance of the goods for home consumption. The petitioners were called upon by show cause notice dated March 24, 1983 to explain why the imported goods should not be confiscated on the ground that the import licence was not valid to cover the goods imported. The petitioners filed their reply on April 27, 1983 and the Collector of Customs by order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Assistant Collector had sought to draw a distinction between items permissible for import on R.E.P. licence as replenishment items in terms of the policy for registered exporters contained in Chapter 17 and Appendix 17 of the Import Policy April, 1980 - March, 1981 on one hand and the additional facility for import to export houses in terms of Para 174(v) of Chapter 18. The learned Counsel urged that the Collector of Customs denied the benefits under Clause 8 of Appendix 20 to the petitioners on the strength of the distinction but the distinction is without any difference. It was urged that the Collector of Customs overruled the objective of the scheme for registered export houses and special facilities given to them and eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers). In the first case, a firm carrying on business of importing rough diamonds and exporting cut and polished diamonds were issued Export House Certificate under the import policy for the period 1978-79 and certain additional licences in or about the month of July, 1986 covered by the licensing period April, 1978 - March, 1979. The advantage of import was denied and that gave rise to the filing of Writ Petition in this Court. The action of the Government in refusing Export House Certificates was struck down and the Government was directed to issue necessary Export House Certificates. The matter was carried right up to the Supreme Court and the order passed by the High Court was confirmed with direction as follows :- "Save and except it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be imported except through the public sector agency. The decision was reiterated in the subsequent judgment where Mr. Justice Sabyasachi Mukharji, as he then was, referred to the earlier decisions and observed that two things are required to be satisfied in respect of imports, firstly whether the items were importable under the import policy prevalent on the date of issuance of licence and secondly, whether the items were importable under the import policy in existence on the date of actual import. Referring to the earlier decision in the case of diamond exporters, the Supreme Court observed that the canalised items cannot be imported unless an exception is made to the rule and the policy declares that the importer can import a canalised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. If that is so, then it should be so read. When this Court observed that the fact whether items were sought to be imported by diamond merchants were canalised, would not be an impediment to the import directly by them, the Court meant to say that this could be imported directly by them through the canalisation organisation. The need for canalisation stands on public policy and that need cannot be lightly or inferentially given a go-by. It should not be presumed that collaterally the Court had done away with the system of canalisation based on sound public policy." The two decisions of the Supreme Court clearly establish that the petitioners were not entitled to directly import Animal Tallow which was canalised item with effect from J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable in respect of import of item which was canalised. The reliance upon an unreported decision of the Division Bench of this Court is also not accurate. The decision proceeds on the basis that principles laid down by the Supreme Court were only in respect of consideration of meaning of the earlier order of the Supreme Court dated April 18, 1985. The Division Bench felt that the decision of the Supreme Court would be attracted when the order to be passed is in the nature of restitution and not otherwise. It is clear from the observations made by the Division Bench that it was not holding that the two decisions of the Supreme Court are not applicable in respect of items imported directly even though the items were canalised. In our judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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