LAWS(MAD)-1998-1-98

EMJEY ENTERPRISES Vs. UNION OF INDIA

Decided On January 29, 1998
EMJEY ENTERPRISES Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) The writ petitioner is a partnership firm. The petitioner is an importer of various goods including drugs as per the Imports and Exports Control Act, 947 (hereinafter referred to as 'the Imports and Exports Control, Act') and Imports (Control) Order, 1955 (hereinafter referred to as 'the Imports Control Order'). An additional licence dated 24.6.1981 was issued in favour of one M/s. Abad Fisheries for the import of certain items specified therein in accordance with the import policy for 1980-81. An additional licence dated 16.7.1981 was issued in favour of M/s. Gujarat State Export Corporation for the import of items specified in accordance with the import policy, 1980-81. A subsidiary additional licence dated 23.9.1981 was issued in favour of M/s. Abad Fisheries for the import of items specified therein in accordance with the import policy 1980-81. Under the Import policy, 1980-81, Amoxycillin Trihydrate could be imported under the open general licence. By a letter dated 30th September, 1981, M/s. Abad Fisheries issued a letter of authority in accordance with paragraph 382 of the Hand Book of the Import Procedure 1981-82 in favour of the petitioner. Similarly, Gujarat State Export Corporation Ltd. by a letter dated 23.12.1982 issued a letter of authority in favour of the petitioner. The petitioner placed orders/Indent No. 312 dated 23rd December, 1982 with one M/s. Anant-Cynth-Chem Pvt. Ltd. of Bombay for the import of the quantity of the said goods as specified in the indent. The letter of credit was opened on 3rd January 1983. The foreign supplier by 8 separate invoices sent the goods of the quantity and value set out therein to the petitioner. The petitioner through its clearing agent filed eight bills of entries for the clearnace of consignment of the Amoxycillin Trihydrate and the clearance was sought against the additional licence No. 2871219 issued in favour of M/s. Abad Fisheries under the letter of authority to the importer and the additional licence number is 2890574 dated 16.7.1981. The first licence viz., licence No. 2871219 was revalidated for 6 months from 27.9.1982 and was alive at the time of import of the goods and the licence No. 2890574 dated 16.7.1981 was revalidated upto 27.12.1982. The licence was not alive at the time of import. But, the petitioner claims the facility of the grace period provided in paragraph 209(3) of the Hand Book of the Import and Export Procedures, 1982-83. Under this paragraph, the importers can avail of the grace period of 60 days in the case of revalidated licence. The petitioner who placed orders on 23.12.1982, opened the letter of credit on 3.1.1983 after the expiry of the licence. It is relevant to notice that both the licences were issued prior to 16.10.1981, the date on which Amoxycillin Trihydrate became a canalised item by a public notice No. 51/ITR-81. The licence was revalidated for various periods in 1982-83. The consignment of the goods arrived at the Port of Cochin on or about 25.2.1983/5.3.1983. The Collector of Customs allowed the clearnace of goods under OGL on the ground that on the dates of issue of licences, i.e. 23.9.1981 and 16.7.1981. Amoxycillin Trihydrate was an open general licence item, and any licence issued would be governed by the policy prevailing on the date of issue and any further amendment to the policy made upto date would not apply to the licence in question.

(2.) The petitioner, before the Collector claimed clearnace on the ground that in the case of R.E.P. licence, policy to be applied was the policy as on date of issue of the licence and revalidation was done without attaching any condition to the same and in the case of second licence, the letter of credit was opened during the grace period and order was placed before the grace period and the delay in opening the letter of credit was sought to be condoned.

(3.) The Central Board of Excise and Customs found that the order of the Collector was not legal and proper and accordingly, in exercise of power under Section 129(D)(1) of the Customs. Act, 1962, the Central Board directed the Collector to apply to the Customs, Excise and Gold (Control) Appellate Tribunal for the correct determination of the validity of the petitioner's import licences. An application was filed by the Collector to declare the order of the Collector dated 12.4.1983 was not correct in law and the goods had been imported in contravention of the Imports Trade Control Regulations and therefore, they were liable for confiscation. Before the Appellate Tribunal, the petitioner has also filed its objections.