Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Bhuta Brothers And Ors. on 18 March, 1998
Equivalent citations: 1998(62)ECC80, 1998ECR929(TRI.-MUMBAI)
ORDER
K.S. Venkataramani, Vice-President
1. These appeals are directed against the adjudication order dated 29.01.1992 passed by the Additional Collector of Customs, Mumbai. The facts are common to all these appeals. The Appellants imported consignments of dry dates and sought clearance of the same against Open General License, Appendix 6, List II, Serial No. 12 of Import Policy 1990-93. The dried and wet dates were meanwhile transferred from OGL to Appendix 3A by Public Notice No. 202 (1TC) 91-92 dated 05/09/1991. Further in the Public Notice 204 ITC (PN) 90-93 dated 06.01.1991 it was clarified that in respect of dates (wet and dry) taken out of OGL in terms of earlier Notification, the imports by the eligible importers shall not be allowed except to the extent of irrevocable letter of credit opened and established before the date of said Public Notice No. 202 of which shipment are made within a period of 90 clays from the date of public notice. In the present case it was found that the Respondents had opened letters of credit on 05.09.1991. It therefore appeared that the import was unauthorised and not covered by a valid licence. The Appellants in this case chose to have the cases adjudicated without issue of a written show cause notice. They were therefore given a personal hearing in the matter and the Additional Commissioner of Customs, Mumbai Custom House passed the impugned order.
2. The Additional Commissioner was of the view that the Respondents could not be possibly aware of the Notification dated 05.09.1991 and on 6.09.1991 on the dates when these public notices were issued. The Additional Commissioner in taking this view followed the Bombay High Court judgment in the case of Swati Chemicals v. Collector (sic) (29) ECR 163 as also the Tribunal decision on the same lines of Alfa Precision Components v. Collector . The Additional Commissioner took the view that public notice/Notification becomes operative only from the date on which it becomes known to the Public at large. In the present case the Additional Commissioner held that in this view of the matter there was no violation of the Customs Act and held that the import of the goods under OGL is valid. This order of the Additional Commissioner was taken up for review by the Central Board of Customs and Excise to examine its legality and proprietary under Section 129D(1) of the Customs Act, 1962 and the present appeals has been filed by the Commissioner of Customs, Mumbai on a direction from the Board under that section.
3. Shri K.L. Ramteke, the Ld. DR referred to the grounds of appeal and submitted that the facts relating to Swati Chemicals case of Bombay High Court are distinguishable and it was further argued that the date of publication is the proper date for change made in the public policy by way of public notice to be made effective. After the issue of the public notice 202 of 05;09.1991 the position is that the dry dates import could be only against a valid import licence and not under OGL. Opening Letters of credit on 05.09.1991, as in this case cannot be said to be tenable in terms of the public notice dated 05.09.1991. The other public notice of 06.09.1991 only gives some reliefs from the restrictions imposed by the earlier Notification. The Ld. DR also relied upon the Supreme Court judgment in the case of Pankaj Jain v. Union of India wherein the Supreme Court has held that the Notification takes effect from the date of their publication in the Official Gazette. The Ld. DR further submitted that the subsequent judgment of the Supreme Court in the New Tobacco Co. v. Collector is factually on somewhat different lines wherein the Supreme Court has held that Notification becomes effective when the Gazette containing the Notification is made available to the public.
4. Shri Anil Balani, the Learned Counsel for the Respondents M/s. Prakash and Company, M/s. Hitesh and Company, and M/s. Jugaldas Damodar Mody & Co. contended that in these cases the Respondents have submitted an application to the bank on 03.09.1991 for issue of letters of credit but it actually came to be issued by the bank on 05.09.1991. Reliance was placed on the Tribunal decision in the case of Gokaldas Harbhagawandas v. Collector in support of the contention that in such situation when the application for letter of credit has been made and accepted by the bank the contract was made for the issue of the irrevocable letter of credit between the applicant bank. In such a view of the matter the Learned Counsel urged that the letters of credit though issued on 05.09.1991 should be held to be effectively letters of credit opened on the date of application i.e. 03.09.1991. In such view of the matter, according to the Learned Counsel the goods can still be cleared under OGL. The Learned Counsel further contended that the recent judgment of the Supreme Court in New Tobacco Company which is subsequent to the Pankaj Jain judgment now holds the field wherein the Supreme Court has held that mere printing of the Notification in the Gazette would not be sufficient but that the Gazette containing the Notification should be made available to the public, then only the Notification can be said to have been duly published.
5. We have carefully considered these submissions. We find that the New Tobacco Company judgment of the Supreme Court lays down the law. The Supreme Court has held in para 12 of the judgment as follows:
We hold that the Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the Notification is made available to the public, the Notification cannot be said to have been published.
The law has been laid down by the Supreme Court in the judgment. The Supreme Court has also observed that their attention was drawn to the decisions of the Court in Pankaj Jain case and observed that decision is not helpful in deciding the question that arose in the cases before it. Therefore, it now becomes crucial as to when the Gazette containing the public notice in these cases became available to the public and this information is not available on record. Neither party before us also has it. Therefore, even as the Supreme Court did in the New Tobacco case, we remand the matter to the original adjudicating authority to decide when the concerned notices in these cases become effective in accordance with the Supreme Court as held in paragraph 12 which is extracted above.
6. We find that the decision in the case of Gokaldas Harbhagawandas of the Tribunal supra is distinguishable. In that case it would appear that on 1.9.1977 the importers in that case requested the State Bank of India for opening letter of credit and a letter of credit was opened on that day and number and the date as well as the amount had been indicated to the suppliers which fact was also borne bout by a confirmation of the suppliers dated 1.9.1997. The L/c therein was actually issued on 5.9.97. In the present case there is no such factual parallel. The Respondents had merely applied to the bank for the issue of letter of credit on 3.9.91 and the letter of credit was actually issued on 5.9.91 on which date the public notice had also been issued. There is nothing to indicate as in the case law relied upon that on 3.9.91 itself the particulars of the letter of credit were transmitted to the suppliers of the Respondents abroad. Therefore this case does not help the Respondents.
7. In the result the appeals are remanded in terms set out above to ascertain the effective date of the public notice in the light of the Supreme Court judgment in New Tobacco Company case supra.
Dictated in Court.