Customs, Excise and Gold Tribunal - Mumbai
Kamani Oil Industries vs Collector Of Customs on 16 May, 1990
Equivalent citations: 1991ECR104(TRI.-MUMBAI), 1990(50)ELT307(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. In both these appeals, though they arise out of the different orders passed by the Additional Collector of Customs, Bombay, a common question is involved as to the liability of the goods imported under the OGL but without compliance of the provisions contained in para 33 of the Appendix 6 of Policy AM 1984-85 and hence by consent of both the sides both appeals are heard together and are disposed of by common order.
2. So far Appeal No. 243/85 is concerned, the appellants imported 1700 bags of green pieces and sought clearance under OGL Appendix 6 Serial No. 34 of ITC policy 1984-85. It was observed that the bill of lading was dated 12-2-1984 whereas the contract was registered with National Agricultural Cooperative Marketing Federation of India (N AFED) as contemplated under para 33 of Appendix 6 only on 24-6-1984. Department objected to the same and held the import as made without the compliance of the provisions of the policy and ordered confiscation but allowed redemption on payment of fine of Rs. 8700/- as against the GIF value of Rs. 3,15,530.54. In Appeal No. 244/85 the appellants imported green pieces having GIF value of Rs. 4,76,7551- where the bill of lading was dated 16-7-1984 whereas registration with NEFED was dated 3-9-1984 and hence the order of confiscation was passed alongwith granting option to redeem the same on payment of fine of Rs. 11,500/-.
3. Shri Anil Balani, Ld. Advocate appearing for the appellants submitted that in both the cases it is undisputed position that the contract was registered with NEFED after the shipment of the consignment but it was certainly before the goods actually reached the Bombay port. In his submissions, the Department has erred in interpreting the word 'import' as used in para 33 of the policy. In his submissions, the OGL is issued under the provisions of the Import and Export (Control) Act and by virtue of definition of the word 'import' given under the same Act, 'import' means bringing into India by sea, land or air. In his submissions, as per the said definition, only when the goods are received in the port, they are deemed to have been imported. He submitted that para 33 of the appendix 6 requires registration of the contract with NEFED before the import takes place and undisputedly before the import took place the contracts were duly registered and as such there was no violation of any of the provisions of the policy. He also submitted that the department has mis-directed itself by considering the provisions contained in para 208 of the Handbook of Import and Export Procedure 1984-85 by holding that as per the said provisions the import is deemed to have taken place on the date of actual shipment of the goods. In his submissions, the provisions of para 208 pertain to consideration of the validity of the import licence and cannot stand attracted in interpreting the word "import" particularly when the word import is already defined in the Import and Export (Control) Act and the OGL licence is also issued under the provisions of the same Act. In his submissions, therefore, the whole basis on which the Department has based its conclusion is erroneous. He also submitted that this Tribunal has in the past while deciding the similar case has held that the date of import has to be taken as the one on which the shipment took place. He submitted that in those cases the point that he has now raised was not raised and that the Tribunal had on no occasion considered the question from this particular angle and that, therefore, the findings given by the Tribunal in the earlier cases should not stand as a bar in this Tribunal now taking a contrary view. As an alternative submission, Mr. Balani, Ld. Advocate submitted that in any case the NEFED has already registered the contract even before the actual landing of the goods here and that this was a merely procedural formalities required for purpose of maintenance of the proper statistical data as regards the import of foodgrains and as such lenient view ought to be taken and the imports may be allowed without imposition of any redemption fine.
4. Shri Deepak Kumar, Ld. JDR appearing for the Department has supported the order passed by the authority below and has submitted that the provisions of the policy cannot be read in isolation and ought to have a harmonious construction. In his submissions, appendix 6 of the policy providing for an Open General Licence, is a part of the Import and Export Policy 1984-85 AM and then referring to para 2, submitted that the handbook is a supplement to an Import and Export Policy and cannot be ignored. Referring to the para 208 of the handbook, Mr. Deepak Kumar, Ld. JDR submitted that there is clear indication that for the purpose of import the actual date of shipment should be considered. He submitted that these provisions have been specifically entered in order to avoid the difficulties experienced by the trade as at time, there is a change in policy and the parties who might have already shipped their consignments, when they were legally permissible to be imported, face difficulty in clearance because of subsequent restriction imposed on such items. In his submissions, when the trade has been granted benefit by virtue of these provisions, they should also face the consequential responsibilities in this regard. Negating the contention that the word 'Import' as defined under the Import and Export (Control) Act alone has to be taken into consideration, he submitted that OGL though issued under the authority vested by Import and Export Control Act forms part of the policy and the reservations and the provisions laid down under the handbook cannot be ignored.
5. Considering the submissions made by both the sides, it appears that the appendix 6 providing for open general licence is part and parcel of the policy and therefore provisions laid down in the handbook cannot be ignored. Reading the provisions of para 208 of the handbook, it transpires that the provisions are principally meant to protect the trade inasmuch as for the purpose of validity of the licence the date of shipment has been taken as criteria. OGL is also a form of licence and even there the provisions of para 208 have to be made applicable. The definition given under the Import and Export Control Acts by no means, curtailed by the provisions of the handbook and there is no conflict between the two. The wordings of para 33 of appendix 6 of the policy have to be read in conjunction with the provisions of para 208 of the handbook and as such the registration of the contract has to be done before the actual shipment of the goods takes place.
6. Admittedly, the shipment has taken place before the registration and there is breach of the provisions of the same paragraph which renders the goods liable to be confiscation.
7. Provisions for registration before the NEFED, however, are principally meant for the purpose of maintenance of statistical data and has no serious repercussions on the import policy in general. The NEFED has already registered contracts though after the shipment but before the goods have reached Indian port. Under the circumstances breach of the provisions of policy are more of technical nature rather than of economical nature. Therefore, though technical breach has been said to have been committed, making the goods liable for confiscation while imposing the redemption fine rational approach ought to have been adopted. Considering this aspect it appears that imposition of the redemption fine in both the matters as indicated above is on the higher side and requires to be reduced.
8. Taking all the aspects into consideration, I hold that the redemption fine may be reduced from Rs. 8700/- in Appeal No. 243/85 to Rs. 3,0007- arid from Rs. 11500/- in Appeal No. 244/85 to Rs. 5000/-
9. With this modification, the appeals are otherwise rejected. Consequential relief to follow.