Calcutta High Court
Jain Exporters Pvt. Ltd. And Anr. vs Union Of India (Uoi) And Ors. on 2 March, 1988
Equivalent citations: 1989(22)ECC100, 1989(25)ECR549(CALCUTTA), 1988(35)ELT322(CAL)
JUDGMENT Paritosh Mukherjee, J.
1. The present writ petition is directed against the "show "show cause notice" dated December 23, 1981, issued by the Assistant Collector of Customs, Air Cargo Complex (Import), Calcutta Airport ,Dum Dum (which is Annexure 'F' to the writ petition), "the adjudication order" dated January 19/20, 1982, passed by the Collector of Customs, Calcutta (which is Annexure 'H' to the writ petition) and also the "appellate order" dated March 22, 1982, passed by Member, Central Board of Excise, Customs (which is Annexure 'J' to the writ petition) for issue of appropriate writ for quashing the said notice and the orders, on the ground stated in the writ petition, details of which is stated hereinbelow.
2. The petitioner No. 1, M/s. Jain Exports Private Limited is an existing company within the meaning of the Companies Act, 1956, and is a recognised "export house", dealing with export and import of merchandise goods, including "portable generators". The petitioner No. 2 is a shareholder of petitioner No. 1 and a citizen of India.
3. In the writ petition, the petitioners have made out a case that by reason of decisions and/or actions and/or issuance of impugned "show cause notices", and because of passing of the "adjudication orders", and" the appellate orders", which have been impugned in the present writ petition, the writ petitioner No. 2 being a citizen of India and a shareholder and his right to carry on his business, through the petitioner No. 1, which his a company, is being deprived and that the respondents are infringing the Fundamental Rights of the petitioners, guaranteed under Articles 14 and 19(l)(g) of the Constitution.
4. The Import Policy for the year 1981-82 issued by the Government of India and in terms of paragraph 185(5) of Chapter - XVIII of the said Import Policy for the year 1981-82 is relevant for our purpose.
5. The petitioner No. 1 as an export house, was entitled to import Articles, falling in Appendix 5 of the said Import Policy, which are not otherwise included in Appendix 26 thereof, on additional licences obtained by it. Appendix 5 deals with the list of "restricted items", the import of which is allowed to export houses, Appendix 26 sets out the list of "restricted items", the import of which is not allowed to import houses against additional licenses.
6. Paragraph 186(5) of Chapter XVIII of the Import Policy is setout hereunder :
"The Additional Licence so granted will be valid for import of the items appearing in Appendices 5 and 7 excluding, however, the items appearing in Appendix 26, and subject to the condition that the import of a single item shall not exceed rupees five lakhs in value. For this purpose, a single item shall be one for which a separate (main) entry number appears in Appendices 5 and 7; all sub-entries, if any, there under shall be treated as part of the said single item only. Also, an item will be treated as part of the said single item even if it may be used in various sizes and specifications e.g. ball and roller bearing etc., shall be treated as a single item for this purpose."
7. The Government of India issued Import Policy, which was published and notified on April 15, 1980, and under the said policy, import of "generators" was not specifically mentioned either in Appendix 5 or in Appendix 26thereof. Subsequently, however, by a public notice No. 19-ITC(PN)/80dated May 23, 1980, amendments were made in the said Policy, and by the public notice in Appendix 5 after Entry No. 381, a new Entry was inserted, as Entry No. 381-A, which is as hereunder :
"381-A. Alternators/Generators"
8. By the said public notice dated May 23, 1980, "generators" were for the first time included in Appendix 5 and 26. By reason of the fact that generators were specified both in Appendix 5 and 26, the export houses could not import generators falling within the meaning of Entry3A in Appendix 26 against additional licenses.
9. Accordingly, there was some doubts as to whether the word' generators' include 'portable generators'. There is a relevant provision for seeking clarification for the purpose of removing such doubts and any actual user could ask for a "clarification", as provided under Chapter20 Paragraph 199(3) of the Import Policy for the year 1980-81, which runs, as follows :-
"(3) In respect of items other than iron and steel an actual user i.e. any person desirous of importing an item subject to actual user condition, may seek clarification from the DGTD (Import and Export Policy Cell), Udyog Bhavan, New Delhi - 110011 about :-
(i) the scope of any item, in Appendices 1, 2, 3, 4, 5, 8, 9 & 10.
(ii) the technical specification/size etc., covered by any such item.
(iii)any doubt whether a particular item required by him is a raw material, component, consumable, spare or capital goods, or a consumer item banned for import under Appendix 10."
10. It is the further case of the petitioners that such clarification was sought for by some private companies, namely, one Messrs. P.B. Udyog of Mahatma Gandhi Road, Calcutta - 7, and by letter dated February7k, 1981, the Director General of Technical Development (Import & Export Cell) (D.G.T.D. for short), Government of India, has confirmed that "portable generating sets" (petrol driven) in question are different from the 'generators' mentioned in Appendices 5 and 26 to the Import Policy of1980-81, which has been annexed as Annexure 'K' to the present writ petition, by the petitioners.
11. It was asserted by the petitioners that in view of the trade policy of the Government of India, which-was published and notified on April 3, 1981, item No. 446 of Appendix 5 of the said Import Policy having covered alternators/generators and item No. 4 of Appendix 26 of the said Import Policy also having covered alternators/generators, the entry of alternators/generators, which was introduced in the Import Policy for the year 1980-81 by public notice dated May 23, 1980, was continued in the same terms in the Import Policy for the year 1981-82.
12. By a public notice No. 37-ITC(PB)/81 dated July 27, 1981, certain amendments were made to the Import Policy for the year 1981-82 and entry 446 of Appendix 5 was amended, as follows :-
"Alternators/Generators, including "portable generators"
but no corresponding amendment was made in item No. 4 of Appendix 26.
13. According to the writ petitioners, the effect of the amendment to item No. 446 of Appendix 5 was that on and from July 27, 1981, "portable generators" could be imported by export houses against additional licences, since no corresponding amendment was made in item No. 4of Appendix 26 to include "portable generators" therein, in terms of Paragraph 186(5) of Chapter XVIII of the additional licences granted to the export houses, which became valid for importation for "portable generators", as they were covered by entry 446 of Appendix 5.
14, The facts pleaded in the present writ petition by the petitioners are that in the course of business, Messrs. Algal Private Limited, Singapore offered to sell and supply to the petitioner No. 1, "portable generators", manufactured by M/s. Honda Motor Company of Japan, and while the offer of Messrs. Algal Private Limited, Singapore, was under consideration of the petitioner No. i, on July 27, 1981, Appendix 5, Entry 446 was amended, as slated above, whereby the import of "portable generators" was permitted by the export houses against additional licence. The petitioner No, 1, thereafter entered into contracts and firm commitments with the above named supplier for the supply of portable generators for the total price thereof and transferred the letter of credit dated July27, J9S1, in favour of M/s. Algal Private Limited. Further, the transfer of the letter of credit was permissible under the law for the import of portable generators and the said letter of credit was transferred on July 28, 1981, in their favour and the bank agreed to the said transfer, as item was "importable" on the relevant date, when the contract was entered into, according to the writ petitioners.
15. In the meantime, in terms of the said contract dated July 27,1981, the supplier made arrangements with M/s, Honda Motor Company, Japan, to supply 579 units of "portable generators", by sea and air to the petitioner No. 1, and 579 units of Articles valued at US Dollar 1,55,477was sent by the said supplier by air on 'October 27, 1981, to Calcutta Airport. The said 5/9 units thus arrived at Calcutta on or about the 1stweek of November 1981.. Thereafter, supply has been arranged for various units and effected by ship and air.
16. In the meantime, another public notice No. 38-lTC(PN)/8) dated July 29.. 1981, item No. 4 of Appendix 26 was also amended to include "portable generators" therein.
17. In view of this amendment, with effect from July 29, 1981,the import into India of "portable generators" became a "restricted item "and "portable generators" could not be imported by export houses on the basis of additional licenses.
18. it is further the case of the petitioners that the said amendment in item No. 4 of Appendix 26 could only be effective on and from July29, 1981, and apply to firm commitments made thereafter and not retrospectively to the firm commitments made prior thereto, and as in the case of the writ petitioners, between July 27, 1981 and July 29, 1981"portable generators" was not restricted items and, as such, the same could be imported on the basis of additional licences, as admittedly the petitioners Slaving entered into firm commitments and having transferred their irrevocable letters of credit in favour of foreign supplier prior to the said public notice dated July 29, 1981, and as such, they were and are entitled to import "portable generators", on the basis of their additional licence.
19. This writ petition was heard, without affidavit, as it involves interpretation of the effect of the word 'amendment' of the public notice and hearing accordingly proceeded, without affidavits.
20. At the final hearing on February 3, 1988, Mr. G.L. Rawal, learned Advocate appearing in support of the writ petition, after placing the facts, as narrated hereinabove, in particular referred to relevant portions from the show cause notice dated December 23, 1981, which runs as follows :
That the licence is valid for import of items appearing in Appendix5 &: 7, excluding the item appearing in Appendix 26 of ITV Policy81-82. The "Portable Generator" is well covered by the word "Generator", which is falling under Serial No. 4 of the Appendix 26 of said Policy. Moreover it is seen that the L.C. was opened on 27-3-1981for import of soap stock in favour of Siew Lian Edible Oil Pvt. Ltd., Singapore. The same L.C. was merely transferred on 28-7-1981 in favour of Algul Pvt. Ltd., Singapore, but the goods have been supplied by M/s. Honda Motor Co. Ltd., Japan.
In view of the aforesaid, it appears that goods valued at Rs.12,77,164.8.5 have been imported in contravention of Clause 3(1)of Import (Control) Order, 1955, as amended, read with Section 3 of the Imports & Exports Control Act, 1947, as amended.
You are accordingly called upon to show cause in writing to Collector of Customs within 10 days from the date of issue of this notice as to why the contravening goods should not be confiscated Under Section 111(d) of the Customs Act, 1962, and why a penalty should not be imposed on you Under Section 112 of the Customs Act, 1962. All evidence in support of your explanation should be furnished along with your written representation.
If you wish to be heard in the matter, you may indicate so in your written explanation.
and submitted that in view of the additional licence, issued in favour of the petitioners, which was valid for import in respect of the item appearing in Appendices .5 and 7, excluding item appearing in Appendix26, by public notice dated July 27, 1981, the petitioners were entitled to import "portable generators", which were included in item 446 of Appendix 5, and as such, the importation was legal and valid. He submitted that "portable generators" were only included in item 4 of Appendix 26by public notice dated July 29, 1981, and the said inclusion was and cannot have any retrospective effect, but can have only prospective operation. He added that during the period July 27, 1981 to July 29, 1981, there was no restriction for import of "portable generators" for export houses, under their additional licences and, as such, there could not be any impediment for importing "portable generators" and the show cause notice dated December 23, 1981, the consequential adjudication order dated January19/20, 1982, and the appellate order dated March 22, 1982, are liable to be quashed.
21. At the hearing of the writ petition, he has relied on a decision of the appellate authority, namely, Member, Central Board of Excise and Customs, New Delhi dated June 15, 1982, wherein the said appellate authority in dealing with "identical point", namely, effect of amendment and made by public notice No. 38/81 dated July 29, 1981, whereby Appendix26 entry No. 4 was amended as follows :-
"After existing description, the following shall be added including 'portable generators'."
after considering the submissions made by the appellant, by appellate order dated June 15, 1982, had allowed the appeal and accepted the contentions of the appellants, that the amendment cannot have any retrospective effect, and had allowed the appeal in toto.
22. I shall discuss the said judgment of the Board in more details hereinafter.
23. At the hearing of the writ petition before me, the copy of the said judgment of the appellate authority was handed over to Mr. R.N. Das, learned Advocate appearing for the respondents, by the learned Advocate for the petitioners, and Mr. Das took time to obtain necessary instructions from the department and the hearing of the petition was adjourned till February 24, 1988, in order to enable Mr. Das to obtain such instructions.
24. Mr. R.N. Das having taken instructions regarding the said appellate order from the department, submitted that he had no comments to offer, since that is an "appellate order" passed by the appellate authority and the order was applicable in the facts of that case.
24. Mr. Rawal thereafter has drawn my attention to the impugned appellate order passed by the appellate authority which is the subject matter of challenge in the present case, and submitted that the appellate authority in fact, although referred to different judgments of the Supreme Court as well as Privy Council, which would be evident from paragraphs5 and 6 thereof, to interpret the meaning and scope of the expression 'include' and what is the meaning of 'inclusive definition' and also referred to ITCP No. 37/81 dated July 27, 1981, incorporating entry No. 446 to Appendix 5 and entry read as. alternators/generators including portable generators, but unfortunately the appellate authority did not deal with the same in details, in his judgment. According to the learned counsel, the appellate authority should have given detailed reasons and should have dealt with more details with the said decisions in not accepting the same, although referred to in the said appellate order and in stead of passing one line conclusion that it was not possible for him to accept the arguments.
26. He has also relied on another judgment reported in 1984 (4)E.T.R. 173 delivered by Customs, Excise and Gold (Control) Appellate Tribunal, Larger Bench, Camp, Bombay, presided over by Shri Justice F.S. Gill, for the purpose of interpretation of 'any person aggrieved in Section 129-A(1)(c) of the Customs Act, 1962, and in the said judgment, it has been held that the Collector of Customs has no power to prefer an appeal, Under Section 129-A(l)(c) against the orders passed by the Board.
27. The subject matter of the said case was that the assessee, M/s. Perfect Power Systems, New Delhi, had imported 8 consignments of "portable generators" and had presented 8 Bills of Entry for clearance of the consignments through their Clearing Agents, M/s. N.P. Jobanputra. The import licences, letters of authority and other relevant documents were produced before the customs authorities, Shri K. Srinivasan, Collector of Customs, Bombay, in his order No. S/10-240/82-G dated 3une 1982,held that the licences produced were not valid to cover the goods imported. In that view of the matter, he directed confiscation of the goods, but however, gave an option to the importers to redeem the goods on payment of fine in lieu of confiscation. The learned Collector refrained from imposing any penalty, on the importers Under Section 112 of the Customs Act, by giving the benefit of doubt and holding that the act of importation was not a deliberate one but was only based on the interpretation of the policy.
28. The importers preferred an appeal against the order of the learned Collector to the Central Board of Excise & Customs, and the matter was heard by Shri S. Venkataraman, Member of the said Board and the appeal was allowed on September 17, 1982, and the order passed by the learned Collector of Customs, Bombay, was set aside.
29. According to Mr. Rawal, this judgment also supports the case of the present writ petitioners that the petitioners were entitled to get relief departmentally, but as the impugned appellate order has been delivered on March 22, 1982, the said judgment of the appellate authority dated November 23, 1982, as reported in 1984 (4) E.T.R. 173, could not be made available to the present petitioners.
20. Mr. R.N. Das, learned Advocate for the respondents has drawn my attention to Annexure 'A' page 28 of the writ petition, that is, public notice. No. 19-ITC(PN)/80 dated May 23, 1980, and in particular serial No. 6, Import Policy for 1980-81 item No. 86, Appendix 5. Then he has drawn my attention to the next page, that is, page 29 to the writ petition, Item 208 Appendix 26. After the existing Entry No. 3, the following new entry shall be inserted :-
"3-A, Alternators/Generators".
31. According to Mr. Das the "amendment" was "clarificatory" in nature and such clarificatory amendment can have retrospective operation. As there was some ambiguity, the clarification was sought for and it had to be published by reason of abundant caution.
32. In reply to the aforesaid contention of Mr. Das, Mr. Rawal, on behalf of the petitioners has drawn my attention to a passage from the judgment of the Supreme Court in the case of Oswal Woollen Mills Limited v. Union of India and Ors., . In paragraph 1.5 of the said judgment, the Supreme Court, in dealing with paragraph 138(1) of the Import Policy of the year 1981-82,observed as follows :
"The present contention of the respondents is that the circular dated 31-8-1981 only clarifies Paragraph 138(1) of the Import Policy,1981-82 and does not amend or modify that paragraph. That is not how the learned Judges of the High Court have understood the Circular in their judgment under appeal. The learned Judges have stated in their judgment that the Circular dated 31-8-1981 appears to change the Import Policy and that the contention of the petitioners before them that the condition mentioned in the impugned order dated15-10-1981 is not found in Paragraph 138 of the Import Policy, 1981-82is not acceptable to them. The learned Judges were right in saying that the Circular appears to change the Import Policy but they have erred in saying that the condition mentioned in the impugned order dated 1.5-10-1981 is found in Paragraph 138(1) of the Import Policy1981-82. We are unable to find any such condition in Paragraph 138(1)of the Import Policy 1981-82."
In my view, that passage of the Supreme Court is the complete answer to the aforesaid argument of Mr. Das.
34 At the hearing of the writ petition, I have been further informed that in terms of the order of the Division Bench dated May 5, 1982,in F.M.A.T. No. 1204 of 1982, the adjudication proceedings were completed, in respect of the second consignment of 3667 portable generators and customs authorities were further directed to complete the adjudication proceedings by May 31, 1982, and ultimately order of confiscation was passed by the customs authorities and from time to time certain interim orders were passed permitting the petitioners to collect goods, both by the learned single Judge and by the court of appeal for releasing the goods, by furnishing "Bank Guarantee" and "personal bond".
35. The interim orders passed by this court from the time of admission of the writ petition since issuance of the Rule on April 12, 1982, are set out hereunder :
April 2, l982 "Upon the petitioner's furnishing a Bank
Sabyasachi Mukh- Guarantee in favour of the Collector of
arji, J. Customs for the amount of 40% of the fine
(As His Lordship or penalty imposed or imposable on the
then was) goods mentioned in Annexure 'D' to the
writ petition, there will be an interim
order of stay injunction in terms of
prayer (e) of the petition till the
disposal of the Rule. The petitioner
will also give a personal bond
and it will not deal with, dispose of,
encumber with or alienate in
any way the assets of the company except
in the usual course of business.
Upon furnishing of such Bank Guarantee
and the bond as stated above, the
respondents are directed to release the
goods and to give Detention Certificate.
Respondents will be at liberty to ask
for variation or vacation of the order
upon notice."
April 29, 1982 "The respondents are directed to carry
Sabyasachi Mukh- out the order dated April 2, 1982 in
arji, J. respect of the clearance of the goods
(As His Lordship of 579 portable generators as quickly
then was) as possible but not later than ten days
from date.
In respect of 3667 portable generators
the respondents are directed to pass
Bills of Entry for the same and upon
furnishing bank guarantee in favour of
the Collector of Customs for 40% of the
redemption fine @ 41% of c.i.f. value
as already passed vide order dated
19/20-1-1982 in respect of 579
generators covered by B/F. No. and
personal bond, the respondents will
permit the petitioner for the clearance
of the said goods namely 3667 portable
generators and give Detention Certificate
within a period of fortnight subject to
all the formalities of the Customs Act.
But I make it clear that this order
will not prevent the respondents from
proceeding with Adjudication proceedings
and the Adjudicator shall not impose fine
more than 41% of the c.i.f. value."
May 11, 1982 "So far as the first consignment of 579
M.M. Dtt portable generators are concerned, the
M.K Mukherji, Customs Authorities are directed to
JJ. release the same to the respondents by
May 15, 1982. In regard to the second
consignment of 3667 portable generators
the appellants are directed to complete
the adjudication proceedings by May 31,
1982. In case in such adjudication
proceedings the Collector imposes any fine,
the appellants shall release the goods up
on the respondents furnishing a bank
guarantee to the extent of 40% of such
fine that may be imposed. The goods shall
be released by the appellants within one
week of furnishing of such bank guarantee
by the respondents. It appears that the
learned Judge had directed that the
Collector shall not impose fine more than
41% of the c.i.f. value. As in regard to
first consignment the Collector has imposed
fine of 41% of the c.i.f. value, the
Collector may not impose a fine more than
41% of the c.i.f. value. But it is a matter
with which we are not concerned with. It is
for the Collector to consider the same. The
order of the learned Judge is modified to
the above extent and save as aforesaid
the rest of the' order stands."
June 4, 1982 "Upon furnishing bank guarantee in favour
Sabyasachi of the Collector of Customs, Calcutta
Mukharji, J within a week for a sum of Rs.1.3,35,000/-
(As His (Rupees thirteen lakhs thirty five thousand)
Lordship for 40% of the redemption fine @ 41% of
then was) c.i.f. value, as calculated by the petitioners
and indicated in the show cause chart a copy
of. Which has been kept on record, as also
further furnishing personal bond for balance
amount of the redemption fine Rs.33,36,810/-
by the petitioner, the respondents will permit
the petitioners for the clearance of 3667
portable generators which have arrived in
Calcutta and give Detention Certificate
within a period of fortnight subject to
all the formalities of the Customs Act."
May 31, 1982 "F.M.A.T. No. 1553 of 1982 filed for the
M.M, Dutt stay of the operation of the order dated
M.K.Mukherji June 4, 1982, but stay refused by the
J.J. Hon'ble Division Bench, but the amount
of bank guarantee 'was enhanced to Rs.
20 lacs,"
June 16 1982 "Bank Guarantee No.90.321 executed for
Rs.20 lakhs and 'personal bond' for Rs.
1,50,70,000/- furnished, by the petitioners."
36. Let us now consider the rival contentions of both the parties.
37., According to the petitioners, the "notice to show cause" dated December 23, 1981, issued by the Assistant Collector of Customs, Air Cargo Complex (Import), Calcutta Air Port, Dum Durn, and the consequential adjudication proceedings and the applellate order are all passed with out jurisdiction, as admittedly writ petitioners have imported "portable generators" on the basis of a valid Import Licence appearing in Appendix 5 and excluding the items appearing in Appendix 26, and although by public notice dated July 27, 1981, "portable generators" were sought to be imported in item 446 of Appendix .5, such importation could not be bad, as Appendix 5* was not amended accordingly, till July 29, 1.981.
38. In fact, the petitioners' contention gets support, when "portable generators" had to be included in item 4 of Appendix 26 by "public notice" dated July 29, 1981, and such inclusion, in my view, cannot have any "retrospective effect" and but can operate prospectively.
39. As such, in my view, in the facts and circumstances of the present case, during the period from July. 27, 1981 till July 29, 1981 there was "no restriction" for import of "portable generators" by the Export House under their additional licence.
40. In this context, the petitioners are supported by the decision of the Appellate Authority, viz., the Members, Central Board of Excise and Customs, New Delhi, dated June 15, 1982, referred to hereinabove, where by the Appellate Authority, in dealing with "identical item" i.e. "Alternators/Generators", Appendix 26 and effect of Public Notice No.37/81dated .July 27, 1981, by which entry 446 of Appendix 5 was sought to be amended by inserting "after the existing description" the following shall be added "including portable generators", the said appellate authority, viz., Member, Central Board of Excise & Customs, New Delhi, further observed that it was not for the Board to go into the dubious intention behind the issue of the amendment and public notice No.38 of 1981. dated 29th 3uly 1981, was issued thereby Appendix 26 entry 4 was amended to the following effect : "after the existing description" the following shall be added "including portable generators". The Board was unable to understand the haste with which the "two public notices" were issued one after the other in just two days. According to the judgment of the Board the fact remains that the importer had every right on earth to open letters of credit within the two days and to import "portable generators". In the said judgment the member of the Central Board of Excise and Customs, observed that the usage of the word "including" exp ands the scope of an item and also refers to the clarification, given by the Industrial Adviser, Director General, Import and Export Cell, dated February25, 1981, who has opined that "portable sets" in question are different from "generators" mentioned in Appendix 5 and 26 of Import Policy of1980-81.
41. In my view, the said decision of the Member, Central Board of Excise and Customs, New Delhi, equally applies to the facts of the present case in full force and is binding upon the subordinate authorities, like Collector of Customs (the Adjudicating Authority) and subordinate authorities.
42. In this context, I may refer to a passage from the decision of Division Bench of our High Court in the case of Durgasree Stores v. Board of Revenue and Anr. , wherein P.N. Mookerjee and Amaresh Roy, 33, in dealing with a petition under Article 227 of the Constitution, held that the precedence viz., the decision of the higher Taxation Tribunal are to be followed by the Subordinate Tribunal and any sudden and unreasonable change in the view are to be deprecated.
43. The Division Bench in paragraph 24 of the said judgment observed as follows :
"In this last-quoted submission, Mr. Gupta contended that the Board of Revenue having held in several cases that circumstances, similar to those, relied on by Tribunals below on the instant occasion, are of no consequence, they acted arbitrarily in refusing the deduction, claimed in the present case Under Section 5(2) (a) (ii) of the Bengal Finance (Sales Tax) Act, 1941. There is considerable force in this submission of Mr. Gupta. Even apart from the question whether the doctrine of precedence would apply in full vigour to Tribunals of the nature of Board of Revenue, it is certainly a consideration of natural justice that the authorities in the sphere of taxation cannot hold the citizen to their whims and .caprices in matters, concerning essential practices of trade and business, allowing deductions Under Section 5(2) (a) (ii) in some cases and disallowing such deductions in some others, although the circumstances appertaining to both the categories, were exactly similar. In. the matter of operation of the Bengal Finance (Sales Tax) Act, the Board of Revenue is, ordinarily, the highest authority and decisions of that Tribunal are binding on the taxing authorities. It is only just and fair that the citizen who has taken his guidance from the earlier decisions of the Board shall not be allowed to be prejudiced or victimised by sudden and unreasoned reversal of the view point, of that highest authority."
44. Further, in view of provisions of Chapter 20, Paragraph 199(3)of the Import Policy, 1980-81 a detailed proceeding has been laid down for obtaining "clarification" and interpretation of Import and Export Policy.
"Chapter 20, CLARIFICATION AND INTERPRETATION OFTHE POLICY.
199(3) In respect of items other than iron and steel, an Actual User i.e., any person desirous of importing an item subject to Actual User condition, may seek clarification from the DGTD (Import and Export Policy Cell), Udyog Bhavan, New Delhi - 110 011 about:-
(i) the scope of any item in Appendices 1, 2, 3, 4, 5, 8, 9 and 10;
(ii) the technical specification/size etc. covered by any such item;
(iii) any doubt whether a particular item required by him is a raw material, component, consumable, spare or Capital Goods or a consumer item banned for import Appendix 10.
Note: (a) The DGTD will liaise with other Ministries concerned and provide the necessary clarification to the Actual Users."
45. In the instant case in my view, the clarification having been obtained, as referred to hereinabove, from D.G.T.D. and also in view of the appellate order of the Member, Central Board of Excise and Customs, the "portable generators" cannot come within the purview of "generator."
46. Further, in my view because of the observations made by the Supreme Court in paragraph 15 in the case of Oswall Woollen Mills (supra),that argument of Mr. Das is not tenable.
47. The argument of Mr. Das that amendment was "clarificatory"in nature and, as such, has retrospective effect, therefore, cannot be accepted and is rejected accordingly.
48. In the premises, in my view, the writ petition is entitled to succeed.
49. The impugned show cause notice dated December 23, 1981,issued by the Assistant Collector of Customs, Air Cargo Complex, (being Annexure 'F') and the consequent adjudication order passed by the Collector of Customs dated January 19/20, 1982 (being Annexure 'H') and the consequential appellate order dated March 22, 1982, i.e. Annexure 'J' to the petition are liable to. be quashed by issue of appropriate Writ in the nature of Certiorari.
50. Let a consequential Writ in the nature of Mandamus issue commanding the respondents and each one of them from proceeding against the petitioners pursuant to the said show cause notice and the adjudication order and appellate order referred to above, in respect of the goods imported under the cover of additional licence, which is the subject matter of the writ petition.
51. The petitioners are further discharged from the "Bank guarantee" which has been executed for Rs.20 lacs, in view of the order of the "appeal court" dated June 16, 1982, in F.M.A.T. 1553 of 1982 and the "personal bond" for Rs. 1,50,70,000/- forthwith.
52. The respondents are further directed to issue "detention certificate" to the petitioners within a period of fortnight from the date of communication of this order to the respondents, subject to all the formalities of the Customs Act, 1962, and in accordance with law.
53. The Rule is made absolute.
54. There will be no order for costs.
55. Let copy of the operating part of the judgment countersigned by the Assistant Registrar (Court), be given to both parties for communication to the respondents.