KAJARIA EXPORTS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioners sought to import 5,000 Metric Tonnes white cement. The goods arrived at Port of Bombay on or about 17.11.1984. The Petitioners filed bills of entry for house consumption and sought clearance of the said goods claiming as an OGL item under Appendix 6, List 8, Part III, Serial No. 33 of Import Policy for April 1984/March 1985 (hereafter referred as 'Import Policy). However, clearance was not permitted. Respondent No. 1 issued a show cause notice to the Petitioners. In the said show cause notice it was alleged that item cement including clinker is canalised and import thereof is only permitted to be made by STC under Open General Licence as per the conditions laid down at Sr. No. 8, Part A, Appendix 5 of AM-1985 Policy and it cannot be covered under OGL Appendix 6, List 8, Part III as that only covers goods which are not restricted or banned specifically in any other portion of the policy. The price shown was also disputed. However, we are not concerned with the same in this petition.

(2.) Petitioners challenged the said show cause notice by filling this Writ Petition. At the time of admission, this Court passed an interim order and also granted liberty to the Respondents to proceed with the adjudication according to the impugned show cause notice though in the meantime the goods were allowed to be cleared on the terms and conditions set out in the said order.

(3.) In view of the liberty granted by this Court the Respondent No. 5 proceeded to adjudicate the matter and passed the order on 13.1.1986. He came to the conclusion that white cement is covered under the definition 'Cement' including clinker appearing at Sr. No. 8 of Appendix 5, Part B of the Import Export Policy. Cement is a generic entry which includes white cement. He therefore held that white cement imported under O.G.L. was not authorised and as such import without an import licence was liable for a confiscation under Section 111(d) of Customs Act, 1962 read with Section 3 of Import (Control) Order 1955. However, he passed the final order of imposing penalty of Rs. 29,57,000/- and directed that the Bond/B.G. executed shall be enforced forthwith as the goods were already cleared and were not available for confiscation.