Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Jain Exports (P) Ltd. And Ors. on 21 September, 1992
Equivalent citations: 1993(46)ECR635(TRI.-DELHI)
ORDER N.K. Bajpai, Member (T)
1. This application has been made by the Collector of Customs, Bombay under Section 130 of the Customs Act, 1962 for referring the following question of law arising out of Order No. 104-106/92-NRB, dated 14.2.1992 to the High Court:
Can, in the facts and circumstances of the case, wether an Open General Licence order be amended by means of a Public Notice issued by the Licensing Authority or not?
2. In the aforesaid order, the Tribunal had held, following the decision of the Delhi High Court in the case of Kaptan's Enterprises v. Union of India , that an amendment to the Open General Licence in force during the policy period 1982-83 could be made only by issue of an order under Section 3 of the Imports and Exports (Control) Act, 1947 and no amendment could be made by issue of a Public Notice by the authorities. Keeping this decision in view, the Tribunal had set aside the order of confiscation of 19 consignments Oxytetracycline HCL imported by M/s Jain Exports in June-July 1982, on the ground that the import of the subject goods was permissible and the amendment in the OGL made by Public Notice No. 21/82, dated 19th April 1982 was not valid.
3. The Collector of Customs, Bombay has referred, in the Reference Application, to the decision of the Division Bench of the Delhi High Court in the case of M/s S. S. International v. Union of India , in support of his view that an amendment to the Open General Licence can be made by a Public Notice issued by the authorities concerned. Shri Ashok Mehta, learned SDR, read out paragraph-3 of the order of the Tribunal and submitted that the decision of the Delhi High Court being that of a Division Bench will prevail over the decision of the Single Judge of the Bombay High Court in the case of Climax Chemicals v. R. Gopalanathan, Addl. Collr. of Customs , on which the Tribunal had placed reliance.
4. Shri G. L. Rawal, learned Counsel for the respondents herein, referred to the judgment of the Supreme Court in the case of East India Commercial Co. Ltd. v. Collr. of Customs, Calcutta , and more specifically of the Delhi High Court in Kaplan's Enterprises v. Union of India , in which the question as to how the provisions of the Open General Licence can be amended has been decided. He also submitted that the decision of the Tribunal in the case of Jain Sudh Vanaspati v. Collector of Customs 1990 (29) ECR 321, as approved by the Supreme Court has settled the matter beyond any doubt.
5. We have carefully considered the matter. It appears to us that the reliance on S.S. International's decision (supra) is misconceived because the interpretation given to its ratio is not correct. A careful reading of the judgment shows that the High Court had not held that an amendment to the OGL can be made by a Public Notice. The fact was that, two different OGLs with which that case was concerned, were issued under Section 3 of the Imports & Exports (Control) Act on 1st April 1986. The position can best be explained in the following manner:
(a) OGL No. 6/86 issued by Order No. 40/85-88 gave general permission to import into India the goods of the description specified in Appendix 5 of the Import & Export Policy 1985-88 by designated public sector (canalising) agencies mentioned in the Appendix. The said Appendix did not cover the spices cinnamon and cloves before its amendment.
(b) OGL No. 15/86 issued by Order No. 49/85-88 gave general permission to import into India goods of the description specified in the Schedule annexed to the order subject to the conditions mentioned therein.
6. On 26th September 1986 following action was taken:
(a) A Public Notice No. 119-ITC (PN)/85-88 was issued by which, inter alia, cloves and cinnamon were deleted from Appendix 6 of the Policy and added to Part A of Appendix 5 (canalised item)
(b) Order No. 63/85-88 was issued under Section 3 of the Act deleting the entries relating to cloves and cinnamon from the Schedule annexed to OGL 15/88
(c) On 6th October 1986, another Public Notice was issued deleting the entries relating to cloves and cinnamon from List 4 of Appendix 6 of the Policy.
7. The effect of these changes was that OGL 15/88 no longer regulated the imports of cloves and cinnamon and this amendment had been done by statutory exercise of the power. The change in the Import Policy in Appendix 5 was done by issuing PN 119/85-88--a course of action which was permissible. Part A of Appendix 5 being a List of canalised items, addition of cloves and cinnamon to it meant that the import of these items was canalised with effect from 26th September 1986. The import of these items, by a reference in OGL 6/86, was regulated by the OGL without there being any need to amend the OGL itself.
8. Thus, if will be seen that since OGL 6/86 itself provided for the import policy in Appendix 5 to be incorporated in the OGL as the substantive policy for these spices, any amendment made lo Appendix 5 would automatically get incorporated as an amendment in the OGL without any need for directly amending the OGL itself. Since amendment to the policy could be made by a Public Notice and this is what was done by Public Notice No. 119-ITC (PN)/85-88, dated 26th September 1986, there was no need for any amendment of the OGL. In that particular case, the provisions of the policy were being applied as though they were provisions of the OGL. Thus, it is clear that there was no occasion for the High Court to consider that a change in the OGL as such could be made by issue of an ITC Public Notice It is evident that the reference to this judgment is misconceived and does not support the plea of the appellant
9. The Tribunal in its decision in the case of Gulab lmpex Enterprises v. Collector of Customs , to which also a reference has been made in the Application, had relied upon the decision of the Delhi High Court in S.S. International (Supra) and since the latter does not support the applicant's contention, reliance on the decision of the Tribunal too is of little avail to the applicants. It is, therefore, not correct to say, as has been stated in the Reference Application, that there is any contradiction between the judgment of the Bombay High Court in the case of Climax Chemical's case (cited supra) and the decision of the Division Bench of the Delhi High Court in the case of S.S. international (supra). It will, therefore, appear that there is no need for any reference on this matter to the High Court. The Reference Application is, therefore, liable to rejection.
10. We are led to the same conclusion once we see the Import Policy for 1982-83. The Policy Book as published by the Ministry of Commerce states as under:
Import & Export Policy for April 1982 - March 1983 Chapter I Introduction
1. (1) The Import....Any amendment to this policy which may become necessary in the course of the year, will be notified by means of Public Notices issued by the Chief Controller of Imports & Exports, from time to time.
2. The Imports and Exports (Control) Act, 1947 empowers the Central Government to prohibit, restrict or otherwise control imports and exports. In exercise of the powers conferred by this Act, the Imports (Control) Order, 1955 has been issued. Schedule I to the said Order contains the list of articles of which imports is controlled. The import of such items is prohibited except (i) under and in accordance with a licence or a customs clearance permit issued under the said Order, or (ii) if they are covered by an Open General Licence (subject to such conditions as may be stipulated), or (iii) if they are covered by the Savings Clause 11 of the Imports (Control) Order. Import of gold, silver, currency and currency notes, bank notes and coins is controlled by the Reserve Bank of India, under the Foreign Exchange Regulation Act.
11. From the above it can be seen that while paragraph-1 of the policy itself pro-vides for amending it by notifying it by means of Public Notices, the Imports (Control) Order, 1955 as well as the Open General Licences having been issued under the Imports and Exports (Control) Act, any amendments to these provisions can be made only by exercise of the statutory power under the aforesaid Act. This position stands confirmed in the judgments cited before us and the judgment in S.S. International's case (supra) does not, as we have seen, in any manner, change the position. The position being well-settied, there is no need for making a Reference to the High Court under Section 130 of the Customs Act. The Reference Application is, therefore, rejected.