Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Walker Anjaria And Sons (P) Ltd. on 16 July, 1986
Equivalent citations: 1986(26)ELT851(TRI-DEL)
ORDER
1. The question for decision in this appeal is whether for the purposes of item 12 of the second schedule of Indian Tariff Act, 1934 also known as Export Tariff, 'Scoured wool' is included in expression 'raw wool' as claimed by the Revenue or 'scoured wool' is a different commodity from raw wool as claimed by the respondent.
2. Before the precise issue is taken up for consideration, it is necessary to give a brief narration of events leading to the present appeal before the Tribunal. The respondents with respects to exports of scoured wool had another matter hereinafter called Jamnagar matter and refund of Rs. 26,04,372.71 p. was ordered by the Assistant Collector of Customs on various dates between 19-8-1974 to 22-11-1974. The Collector of Customs & Central Excise, Ahmedabad within whose jurisdiction Jamnagar falls issued show cause notice dated 4-2-1976 proposing to review this order and this order was reviewed and set aside and amount refunded to the respondents, ordered to be recovered by order dated 29-7-1976. The respondents in respect of this order preferred appeal to Government of India and Government of India by order No. 279-B/78 dated 16-9-1978 remanded the matter to the Collector of Customs, & Central Excise, Ahmedabad on the ground that there was denial of natural' justice in taking the decision. The matter was then heard by Shri K. Srinivasan, Collector of Customs and Central Excise, Ahmedabad. While these, proceedings were pending before him, he was transferred as Collector of Customs, Bombay and Government of India, Ministry of Finance (Department of Revenue) by notification No. Cus/64 dated 7-10-1980 appointed Shri K. Srinivasan, Collector of Customs,. Bombay as Collector of Central Excise, Ahmedabad for disposal of this case. By order dated 30-5-1985, the Review notice dated 4-2-1976 proposing to review the order of Collector of Customs granting refund was dropped on the ground that show cause notice demanding the amount said to have been erroneously refunded had not been issued within a time limit of six months and that the customers could not legally be asked to repay the amount. The Collector therefore, in this case did not consider it necessary to go into the merits of the case whether scoured wool is included in the term raw wool.
3. As for the present matter, four demands dated 17-2-1975, 18-2-1975, 18-2-1975, 15-2-1975 were served on the respondents for the amounts Rs. 7,55,061.12p, Rs. 5,81,463.64p., Rs. 4,22,903,Hp., and Rs. 4,19,206.62p., respectively. After following the usual procedure, the show cause notices were confirmed by the Assistant Collector of Customs on 18-10-1975. The respondents then filed a writ petition in Bombay High Court being No. 13/88 of 1975 challenging the aforesaid order dated 18-10-1975.
4. On 7-12-1979 in the writ petition on consent terms, the High Court of Judicature at Bombay passed, so far as material for the present appeal, the following order -
1. Demand notice dated 10-2-1975 (Ex.G. to the petition) and the order of the Assistant Collector of Customs dated 18-10-1975 (Ex.G to the petition) confirming the said demand are quashed and set aside.
2. The order of the Assistant Collector of Customs dated 18-10-1975 (Ex.P) is quashed and set aside.
3. In respect of four show cause notices dated 17-12-1975, 15-1-1975, 18-2-1975, and 18-2-1975 (Exhibits H, I, 3 and K to the petition respectively) the respondents are at liberty to hold fresh adjudication proceedings, after giving the petitioner reasonable opportunity of being heard and producing evidence.
5. Shri Srinivasan, Collector of Customs, Bombay by order dated 3-5-1985 after dropping the Ahmedabad matter on the ground that show cause notice was time-barred on 30-5-1986 itself, after referring to the said matter, and stating that in that case, he had not considered the merits of the case, took up the present matter for adjudication. In paras 2 to 7, he referred to arguments of Shri Desai, Advocate advanced before him and to opinions on which Desai relied. In paras 8 to 10 he recorded his findings. Of these, paras 8 and 9 only generally referred to the opinions, meanings and evidence of Shri P.C. Pathi, Shri S.S. Khote and Shri Sidharth Kaju. In para 10, he referred to Government of India order in revision. Order No. 167-169/72 dated 3-6-1972 passed by Shri B. Sen and the Supreme Court decision cited therein AIR SC 1323 and then the Collector recorded his findings in the following words -
"The Government of India in their Order-in-Revision referred to above, have examined the issue in detail. They have held that the expression 'raw wool' will have to be interpreted in its popular and commercial sense rather than in its dictionary or technical sense. He cited the famous judgments of the Privy Council in the R.V.S. Planters-Nut and Chocolate Co. Ltd. and that of the Supreme Court in Ram Avatar Budhani Prasad v. Assistant Sales-tax Officer, Akola AIR 1961 SC 1325. In trade practice as well as authoritative books like Kirk Othmer and Fairchild's Dictionary of Textiles use the expression raw wool as synonymous with greasy wool. In fact, it appears to me that the expression 'raw wool' is rather a loose term which ought to be defined in a fiscal statute. In the absence of any such definition, we have to go by the accepted trade and commercial practice, as has been done by the Government of India in the case cited. In view of this, I held that the expression 'raw wool' used in the Export tariff at the relevant time did not cover 'scoured wool'.
Aggrieved, with the order, the Collector of Customs, Bombay has filed this appeal to the Tribunal.
6. After the respondents filed their paper book an objection was taken by the appellant that documents filed in the paper book numbering in all 23 filed on 16-12-1985 did not form part of the record before the Collector of Customs, Bombay hearing the Bombay matter. To challenge this contention an affidavit dated 3-2-1986 sworn by Ajay Jayantilal Anjaria for the respondent was filed. In para 5 of the affidavit it is sworn -
"The hearing was held at Bombay on 27-2-1981 and arguments and submissions were heard by the learned Collector of Customs, Bombay. At the said hearing the learned Collector of Customs, Mr. Srinivasan asked the Counsel of the Respondents herein whether the Respondents desired in case of the Bombay exports to lead any further evidence, or whether they intended to rely upon the evidence led in the matter of exports from Jamnagar. I say that this suggestion came from the Collector of Customs, Mr. Srinivasan holding the additional charge under the above referred Notification. This suggestion was welcomed by the respondents as it would have meant avoidance of duplication/multiplication of proceedings and additional costs. The respondents accepted the suggestion of the learned Collector of Customs because the Company could save on time to a large extent as also the expenses. It was in these circumstances and understanding that none of the parties led any further evidence whatsoever in the matter of exports from Bombay, but agreed to rely on the evidence, proceedings, arguments and submissions led in the matter of exports from Jamnagar to be used in the matter of exports from Bombay."
An alternative request was also made to admit this as additional evidence. Both the parties filed a number of documents as evidence before the Tribunal. Cataloguing of these documents at this stage appears unnecessary and to the extent material they would be referred to at the appropriate stage.
7. By Misc. Order No. 17/86-C dated 28-2-1986 after hearing both the parties and their consent it was ordered that the documents filed by the parties should be read in the appeal as additional evidence - the weight to be attached to this evidence, to be decided only after the appeal is finally heard. Liberty was also given to the parties to make request for cross examination of any witness or to file any affidavit or counter affidavit and this request was to be considered on its own merit. No such request till the hearing of the appeal was made.
8. At the hearing of the appeal Shri Sundar Rajan, the learned JDR representing the appellant submitted that the procedure adopted by Shri K. Srinivasan, Collector of Customs, Bombay was not in accordance with law. Proper opportunity of meeting the case was not available to the Revenue. While he did not dispute Shri Srinivasan's jurisdiction to deal with the Bombay matter, he challenged the way of his exercising the same. He submitted that in Bombay matter there was absolutely no material before the Collector of Customs, Bombay to have come to a conclusion that Raw Wool and Scoured Wool were different goods. In particular, he drew attention to the fact that after dropping the Jamnagar Matter on 30-5-1985 itself on the ground that notice was time barred he took up the Bombay Matter for consideration without any notice to those concerned with handling of the case in Bombay Customs House. In that connection he had produced the original adjudication file of the Customs House and has also filed on record a photostat copy of the notings dated 30-5-1985 of Shri K. Srinivasan the then Collector of Customs, Bombay. He submitted that the noting and the opening sentence of the impugned order contradicted the respondents' claim made in the affidavit (portion extracted above) and greater weight should be attached to the observation in the order and the noting than to the affidavit filed on behalf of the respondent.
9. About merit he submitted that on the import side for the purpose of according concession under exemption notification 154/79 dated 4-7-1979 scoured wool is treated as raw wool in the case of several importers and this reflects commercial understanding. There is no reason why for export the same should not apply. The technical opinion of Wool & Woollen Export Promotion Council referred to in para 5 of the order of the Collector was meaningless as the same Wool & Woollen Export Promotion Council in its letters dated 2-5-1985 and 13-5-1985 addressed to the Member (Customs) Central Board of Excise & Customs contradicted the earlier letter. He also criticised the weight given in the impugned order (para 4) to the opinion of Director, International Wool Secretariat, Indian Branch as having no meaning because price of greasy wool straight from sheep's backs containing fat and other impurities is determined on the basis of scoured wool contents. He also criticised the reliance in the impugned order on opinion of International Wool Textile Organisation and COMITE CENTRAL DE LA LAINE, ET DES FIBRES ASSOCIEES, Paris because according to him other authorities contradicted this opinion. Similar criticism was made of reliance on American Wool Hand Book stating that New Zealand sold greasy and scoured wool separately. About the reliance, on Government of India decision dated 3-6-1972 by Shri B. Sen it was submitted that this decision was given for lack of evidence and finding given in this decision could not even when necessary evidence was there be used for holding that scoured wool and raw wool were different.
10. About the documents which the respondents claimed to have filed before the Collector of Customs and which they have now filed in the form of a paper book before the Tribunal Shri Sundar Rajan, the learned JDR submitted that Wool & Woollen Export Promotion Council's letter dated June 27, 1974 (at page 4 of the respondents' paper book) could not be given any weight because of the opinion of other authorities like Indian Council of Agricultural Research in their letter dated 20-6-1975, opinion of Central Sheep & Food Research Institute, Avika Nagar, Rajasthan in their letter dated 25-8-1975 and the opinion of Deputy Director, Textile Commissioner, Bombay in their letter dated 17-10-1975.
11. Shri Sundar Rajan further submitted that unless scoured wool is treated as raw wool, the respondents could not have exported the same as it would have been a banned item for export. In particular he drew attention of the Bench to respondents export documents where the wool, exported by the respondents was described as raw wool.
12. Shri Sundar Rajan also relied on News Item appearing in Financial Express dated 31-5-1985 and 23-7-1985 for the argument that raw wool and scoured wool are not different. Letter of Shri J.K... Bagchi, Joint Secretary, Ministry of Commerce to Member Customs C.B.E.C. for the same argument. Textile Commissioner's letter dated 27-4-1985 to Collector of Customs (Shri K. Srinivasan) Bombay for the same argument. Central Board of Excise and Customs letter dated 23-7-1985 addressed to All Collectors of Customs for the same argument that raw wool would include scoured wool. He also relied on Minutes of the conference of Collectors held at Calcutta on 16th & 17th January, 1975. This conference was of opinion that raw wool would include scoured wool for the purpose of export duty under item 12 of the Export Schedule. Referring to letter from Shri D. Balasubramanian, Deputy Director to Under Secretary, Central Board of Excise & Customs, New Delhi, he submitted that the office of the Textile Commissioner had in this letter revised his earlier view contained in letter date 17th July, 1974 addressed to Assistant Collector of Customs, Jamnagar, on which respondents placed reliance. Similar submission was made relying on letter dated 28-5-1983 from office of the Textile Commissioner, Bombay with respect to their earlier letter dated 11-4-1983. He submitted that according to dictionary of textile terms from Encyclopedia of Textiles page 581 scouring only means freeing of wool from yolk, suint, dirt and all other foreign matter which may be done by washing with soaps and alkalies, by treating with solvents or chemicals or by naphthalating the stock at below freezing temperatures. According to him, it is only a process of cleaning and cleaning of raw wool would not make it a different product from raw wool. He also referred to key stages in the making of a woollen fabric as set out in the same book. He also referred to meaning of scouring as set out in Wool Textile Terms and Definitions published by the Wool & Woollen Export Promotion Council, Ministry of Commerce, Government of India, that the meaning set out is treatment of textile materials in aqueous or other solutions in order to remove natural fats, waxes, proteins and other constituents, as well as dirt oil and other impurities and reiterated the argument (supra). He also referred to the meaning of scouring and how it is done as set out in American Wool Handbook. He also referred to letter of Shri J.V. Sarma, Controller of Import & Export addressed to the Superintendent of Customs, Jamnagar stating that raw wool and scoured wool are all one and the same for the purpose of export and fall within the purview of definition of 'Raw Wool'. Relying on Indian Council of Agricultural Research letter dated 20th June 1975 addressed to Shri D.C. Mandal, Under Secretary, Central Board of Excise & Customs, New Delhi, he submitted that according to this letter scoured wool would fall under category of raw wool covered under the A.P. Cess Act. Similar argument was advanced on the strength of Central Sheep & Wool Research Institute, Avika Nagar letter dated 25-8-1975 already referred to above addressed to Shri D.C. Mandal. According to this letter though the appearance and feel might vary, the fibres (of scoured wool) remain still in physical condition which can be described as raw wool. He also relied on the Wool Grading and Marking Rules 1975 for his argument. He also relied on the certificate of NEW ZEALAND WOOL TESTING AUTHORITY which, inter alia, states that scoured wool as used in their certificate relates to raw wool as defined.
13. Relying on two decisions of the Tribunal - Collector of Central Excise, Bombay v. Bakul Aromatics & Chemicals Ltd. Order No. 84/86-C and a 5 Member Bench decision in The Tata Oil Mills Co. Ltd. v. Collector of Central Excise, Madras Order No. 181/86-C 1986 (24) ELT 290 he argued that the process of scouring to which raw wool was subjected to by the respondents could not make it a different product from raw wool. In the first decision the Tribunal held that the process of concentrating Formic Acid of 65% strength to 8596 strength by removing excess water adopted by the respondents did not amount to manufacture. In the second decision the Tribunal held that the process of extra hardening of vegetable essential oil falling under item 12 would not change it into a different product falling under tariff item 68. On these submissions Shri Sundar Rajan submitted that the order of the Collector of Customs, Bombay holding 'scoured wool' different from 'raw wool" be set aside and the two be ordered to be treated alike for the purpose of export tariff.
14. Strongly controverting the submissions of Shri Sundar Rajan, Shri R.3. Joshi and Shri B.B. Gujral, Advocates for the respondents submitted that it was wrong to say that the procedure adopted by the Collector of Customs was wrong or opposed to law, they submitted it was also wrong to say that the Collector took Bombay Matter pertaining to' the respondents for consideration on 30-5-1985 itself after dropping the Jamnagar Matter. Shri K. Srinivasan was dealing with Jamnagar Matter pertaining to the respondents at Ahmedabad where he was posted as Collector of Customs. The respondents and the Revenue had both placed evidence oral and documentary before him regarding the issue in question. After his transfer sometime in 1979-80 by Notification No. 198/F. No. 437/4/80 Cus-IV dated 6-10-1980 in addition to his appointment as Collector of Customs, Bombay jurisdiction was conferred on Mr. Srinivasan as Collector of Customs & Central Excise, Ahmedabad in respect of the respondents' Jamnagar matter pending before him as Collector at Ahmedabad. In this connection respondents' referred to letter No. C1305/70/C003832/76 dated 8th January 1981 from K. Srinivasan, Collector of Customs, Bombay addressed to the appellants at their Jamnagar address. Relying on an affidavit sworn by Ajay Jayantilal Anjaria constituted attorney of the respondents it was submitted that in hearing dated 27-2-1981 Shri K. Srinivasan, Collector of Customs asked the counsel for the respondents whether in respect of the Bombay exports they wanted to lead any further evidence or whether they intended to rely upon the evidence led in the matter of exports from Jamnagar. The affidavit (para 5) goes on to say that this suggestion was welcomed by the respondents as it meant avoidance of duplication/ multiplication of proceedings and additional costs. The respondents accepted the suggestion of the Collector of Customs as this could save on time to a large extent as also expenses. It was in these circumstances and understanding that none of the parties led any further evidence whatsoever in the matter of exports from Bombay but agreed to rely on the evidence, proceedings, arguments and submissions led in the matter of exports from Jamnagar to be used in the matter of exports from Bombay. Thus according to the respondents' contention evidence led in Jamnagar Matter was also evidence with respect to Bombay Matter.
15. Respondents have produced before the Tribunal documentary evidence and statement of witnesses which was relied on by them with respect to Jamnagar Matter to be admitted as additional evidence. This, as already stated, has been admitted before the Tribunal. The evidence consists of description of scouring process, letter from Wool & Woollens Textile Promotion Council dated 27-6-1974, Assistant Collector of Customs letter to the effect that scoured wool cannot be termed as raw wool, letter from office of the Textile Commissioner dated 17-7-1974, to the same effect, letter from International Wool Secretariat dated 8-12-1975 to the same effect, letter dated 3-6-1976 from University of Bradford to the Director of the respondents, letter dated 30-7-1977 from Indian Woollen Mills Federation to the same effect that raw wool and scoured wool are distinct commodities. In the same trend are the letters dated 2-9-1976 from Associazione Nationalle Commercio Laniero Fra Commercianti & Rappressentati Di Materie Prime Tassili Blella, Italy. 6-10-1976 from Wool, Research Organisation of New Zealand, letter dated 20th August 1976 from Federation Lanera Argentina Buenos Aires and 4-8-1976 from Comite Central De La Laine Et Des Fibres Associees, Paris. For the same purpose the respondents also rely on Wool Records Weekly Market Reports dated 9-4-1976, 12-3-1976, 20-10-1978 and 24-3-1978. In these reports both the terms Scoured Wool and Raw Wool are used. Reliance is also placed on a Paper by Dr. Kuntz of German Wool Research Institute. There is also a letter dated 25-6-1976 from Royal Melbourne Institute of Technology in reply to the respondents letter dated 10th June. The letter encloses photocopies of required sections of wool classing and sheep husbandry courses. At pages 34 tq 40 of the Paper Book there are extracts from various textile books whom the respondents claim to be world renowned authors. There are also statements of Shri S.K. Mundra, President of Sri Digvijay Woollen Mills, Jamnagar, Shri S.S. Khot, retired Chief Sheep & Wool Development Officer, Ministry of Agriculture, Government of India, Shri Sidharth Katju, Chief Executive, Worsted Spinning Project, Reliance Textile Industries, Naroda, supporting the respondents' case. Affidavit of Shri Deepak Raj Nath partner of M/s Raj Woollen Industries is also to the same effect. The affidavit of Mr. W.J. King, Director of M/s J & W Greig Ltd. Scotland also says the same thing. The respondents have also filed International Trade Agreement applicable to such transaction to support their case. Similar Standard Contract of British Wool Federation is also filed. There are statements on Cross Examination of Shri P.C. Patni, Shri V.B. Verma before Shri K. Srinivasan. It appears that these two witnesses were examined to support the Revenue's case and the respondents cross examined them. Shri P.C. Patni in his cross examination inter alia relying on certain authorities stated that as far as Indian Wool is concerned there is no difference between raw and scoured wool. Shri V.B. Verma, Director, Office of the Textile Commissioner, Bombay in his cross examination had stated that raw wool and scoured wool have essentially the same characteristic of raw material, namely, raw wool which is a basic material for production like yarn etc. The common use of raw wool or the scoured wool are the same. '
16. Respondents also filed translation of the opinions of Dr. Kuntz. They also relied on Departmental Tariff Advice No. 26/85 reproduced in Bombay Customs House letter dated 9-9-1985 and Bombay-H Collectorate Trade Notice No. 45/85 dated 11-7-1985 as reproduced in Volume 21 of Excise Law Times (T.10). According to this scoured wool is different from raw wool and classifiable under item 68 of the First Schedule to the Central Excises & Salt Act, 1944. Relying on the above the learned Advocates for the respondents argued that the impugned order passed by the Collector of Customs was based on proper evidence after affording proper opportunity to all concerned and the Tribunal should uphold the finding that 'scoured wool' is different from 'raw wool' for the purpose of export tariff.
17. The first point to be seen is whether with respect to Bombay Matter procedure adopted by the Collector of Customs can be said to be in accordance with law, inspires confidence and is in consonance with the principles of equity, justice and good conscience.
18. While the respondents submit that the Collector of Customs as early as 8-1-1981 by his letter No. C1305/70/C003832/76 intimated the respondents of his intention to take up Bombay Matter and Jamnagar Matter together, a perusal of the letter does not justify this contention or inference. For case of reference the letter is extracted in full.
"Sir, Sub : Writ Petition No. 1388 of 1975 filed by you in the High Court of Bombay - Regarding.
The Government of India, Ministry of Finance (Deptt. of Revenue) in their Notification No. 198/F.No. 437/4/80-Cus.IV dated 6-10-1980 have appointed me as the Collector of Central Excise, Ahmedabad for deciding the review proceeding in the case of export of Scoured Wool by you pursuant to the Order No. 279-B/78 of 1978 dated 16-9-78 passed by the Government of India on Customs revision application filed by you. The examination of witnesses in this case has been completed and the case is now being posted on Saturday, the 31st January, 1981 at 11.00 hrs. for arguments. You are, therefore, requested to appear before the undersigned on the said date at the time fixed for the aforesaid purpose.
2. Please note that no adjournment will be granted on any ground whatsoever and if you fail to appear for the personal hearing, the case will be decided on the basis of the evidence on record without any further reference to you.
Yours faithfully, Sd/- K. Srinivasan."
From this letter it would be seen that the only reference in this letter is to the Writ Petition filed 6y the respondents in Bombay High Court and that too in the sub title. There is no reference to the same at all in the text of the letter.
19. In the affidavit of Ajay Jayantilal, Anjaria material portions of which have already been referred to above it is urged that on 27-2-1981 Shri K. Srinivasan suggested that the Jamnagar Matter and the Bombay Matter may be amalgamated together and it was for this reason that the respondents did not adduce any evidence. While respondents have produced and filed in evidence record of personal hearing before the Collector of Customs such being the practice followed before the departmental authorities, it cannot be ignored that no record of hearing dated 27-2-1981 has been filed. This apart the Collector after reciting narration and quashing of the demand by Bombay High Court order dated 7-12-1979 in the opening material part pertaining to the present matter says as follows ;
"I had taken over this file for adjudication since the connected matter of Ahmedabad Collectorate has been assigned to me for adjudication. That case also involved the same issue i.e., whether scoured wool will be covered by the expression, 'Raw Wool'. I had already given a hearing in the Jamnagar case and I thought that the same order will cover this also. However, in that order, I have not considered the merits of the case but I have only gone by the fact that "the show cause notice itself was without jurisdiction."
20. Shri Sundar Rajan had during arguments produced the original file of the Collectorate pertaining to the present matter and had also filed copies of the notings. In the notings dated 30-5-1985 we find the following :
"This file was taken over by me from the Additional Collector as a similar case of Ahmedabad Collectorate was with me for adjn. I became aware of this when the exporters informed me about this.
I have since adjudicated this, I have held that scoured wool is not raw wool and I have followed the decision of Shri B. Sen, J.S. in the R.A. case decided by G.O.I. PL issue the order.
Also send a copy to E Group as the question of levy of import duty on scoured wool is pending there. Issue is the same.
Sd/- "
There are no intermediate notings to show that the Collector had taken over this file on 27-2-1981 as suggested by the respondents nor have we on record the notes of personal hearing dated 27-2-1981. In view of the portions extracted the argument advanced by the respondents that the Collector had on 27-2-1981 itself after ascertaining from the respondents decided to amalgamate the two proceedings and disposed of them together is not acceptable.
21. A perusal of the impugned order shows that after reciting the history of the case (wherein there is no specific reference to file being taken up on 27-2-1981 or any earlier period prior to 30-5-1985) in paras 2 to 9 and partly 10 the Collector of Customs recited the arguments advanced by Shri Ashok Desai, Advocate for the respondents before him. The trade opinions, precedents all support the respondent - non-applicant before him. Only reference, if any, to Revenue's case is to be found in para 9 of the order where Shri Ashok Desai criticised the evidence of Shri P.C. Patni, Scientist, Central Sheep & Wool Research Institute, Avikanagar, on the ground that on his own admission the witness was not a textile chemistry expert and hence could not comment anything on the chemistry aspect. There is no reference at all to the statement/of Shri V.B. Verma, Director, Office of the Textile Commissioner.
22. From the documents placed before us to which reference has already been made above there can be no doubt that there is much to be said in support of rival claims. From the impugned order and recital of arguments therein it would appear as if the Revenue had no material in support of its case which, however, does not appear to be correct. Collector of Customs had no doubt jurisdiction to adjudicate a matter pending before Additional Collector of Customs but in exercising this jurisdiction he should have proceeded in accordance with the procedure prescribed by law or if no such procedure is prescribed in accordance with the principles of equity, justice and good conscience so that the procedure adopted inspires confidence. It appears to us that immediately after dropping the Jamnagar Matter on ground of limitation in the issue of show cause notice, the Collector decided to take up this matter for adjudication. After he had dropped the Jamnagar Matter, he had become functus officio in respect of that matter. We have already pointed out how there is no credible material to show that any decision was taken to amalgamate the two matters for adjudication. Having become functus officio in respect of Jamnagar Matter the Learned Collector of Customs could not have made any use of evidence produced and arguments advanced in Jamnagar Matter for decision of the Bombay Matter. This apart in Custom Houses as is well-known, working is not always on individual basis but on institutional basis. Before proceeding to decide the matter it was expected that the Collector of Customs should give proper notice to those actually handling the matter or entrusted with handling of the matter so that the Revenue's point of view and the evidence in support of that view could be placed before the adjudicating officer. This does not seem to have been done; otherwise, there appears no reason why the overwhelming material which the Revenue has in its possession in support of its claim should not have been placed before the Learned Collector of Customs or the same referred to in his order.
23. In taking the aforesaid view we cannot overlook the fact that as late as 27-4-1985 a month before the impugned decision was taken, Shri S. Ramamoorthy, Textile Commissioner had addressed a D.O. letter to Shri Srinivasan stating that raw wool is a very general term and in some cases the description is given as greasy wool. Some others choose to import scoured wool which is the same as clean wool and that in all these cases the price of wool is based on clean wool content irrespective of the description given. This communication, besides other communications referred to above, should have put the Collector of Customs on guard and even if this letter and the communications were not part of record they should have been brought on record by following proper procedure of giving copies of the same to the other party before making use of them. This would be true also of other communications. However, as already observed it appears that the Revenue did not get proper opportunity to meet the case. Besides, some of the opinions on which the Learned Collector placed reliance have been contradicted by superior authorities of the same office to which reference has already been made above.
24. As to the argument that the Collector of Customs was bound to follow the decision of Government of India given in a quasi-judicial capacity, we have referred to argument of Shri Sundar Rajan, the learned JDR that the decision was based on insufficiency of evidence and could not be used as a precedent when requisite evidence was there. There is also the argument by the respondents that the Tariff Advice supported the respondents' case and the respondents had taken out an excise licence in respect of 'scoured wool' which would suggest that 'scoured wool' is different from 'raw wool', a process of manufacture having taken place. We Do not record any findings on this argument ourselves lest we fecter the judgment of the Collector of Customs to whom we are remanding the matter.
25. In our view, the procedure adopted by the Collector of Customs does not inspire confidence and does not conform to equity, justice and good conscience. Revenue did not have proper opportunity to substantiate its case. We therefore set aside the impugned order and remand the matter for de novo decision to the Collector of Customs, Bombay and the evidence which was produced before the Tribunal shall be admitted and read as evidence before him. The parties would be at liberty to adduce any further evidence with the permission of the Collector of Customs. After hearing the parties and affording opportunity of hearing as aforesaid, the Collector of Customs shall decide the matter de novo and in accordance with law. As the matter is old, we direct that it may be decided within a period of six months from the date of receipt of these orders by the Collector of Customs.
26. The appeal is thus allowed by remand.