YOGESH BABULAL SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE short question which falls for determination in this petition filed under Article 226 of the constitution of India is whether the Cloves which are imported by the petitioner fall within Item 169 in List 8 of Appendix 6 of Import and Export Policy April 1990 - March 1993. Item 169 reads as follows : "169. Drugs/drug intermediates not elsewhere specified. " it is not necessary to set out the facts in great detail as the fact of import under the licence dated december 5, 1990 is not in dispute.

(2.) THE petitioner has secured licence dated December 5, 1990 by transfer. The licence enables the actual users to import goods as per Paras 220 (2) and 220 (1) of Policy of AM 1990-93 of policy Book subject to conditions stipulated in Paras 220 13 1d. In pursuance of this import licence the petitioner imported cloves and filed Bill of Entry on March 11, 1991. The petitioner complains that the respondents are withholding the clearance of the said goods on the ground that the import is not valid.

(3.) AS several petitions are filed by the importers of cloves, we felt that it is desirable that one of the petitions should be finally disposed of to avoid multiplicity of litigation. Accordingly, we have heard Shri Mehta, learned counsel for the petitioner, and Shri Vyas on behalf of the respondents at length. As mentioned hereinabove the question which falls for determination is whether the cloves can be treated as drug or drug intermediate. Shri Mehta relied upon the certificate issued by Italab Private Ltd. where it is claimed that clove oil is used in medicines and is an ingredient in medicinal products. Clove oil is used as ingredient for relief of toothache. Relying on this certificate Shri Mehta urged that clove should be treated as a drug. Reference was also made to Pharmacopoeia and dictionaries to claim that clove can be described as a drug. Reliance was placed on the Merck-Index, 9th Edition page 2371 where 'clove 'is described as "dried flower-buds of Eugenia caryophyllata Thunb". Shri Mehta also relied upon the Import export Policy of April 1983 - March 1984 where the cloves are set out as the Ayurvedic name of the crude drug. Relying on this material it was urged that the clove should be treated as a drug and therefore squarely falls in Item 169 of List 8 Appendix 6 of Policy 1990-93. Shri Vyas, learned counsel appearing on behalf of the respondents, on the other hand submitted that the clove imported by the petitioner can by no stretch of imagination be described as drug or drug intermediates. Shri Vyas submitted that it is not permissible to rely upon dictionary meaning or the meaning of the expression "clove" set out in pharmaceutical books to ascertain whether clove should be treated as 'drug or drug intermediates' for the purpose of import in accordance with the import Policy. Shri Vyas submitted, and in our judgment with considerable merit that the proper test to be applied is to ascertain as to how the item is known in the market dealing in cloves. It is impossible to imagine that the person who wants to buy cloves would go to a drug store. In our judgment it is impossible to suggest that the cloves are drugs or drug intermediates. It is possible that cloves may be one of the ingredients for manufacture of some of the drugs but that cannot lead to the conclusion that cloves by themselves are the drugs or drug intermediates. In our judgment, cloves must fall under the heading of spices.