Sputnik Stamping Vs. Commissioner of Customs

1. The common question arises for consideration in these 27 appeals. It is whether each of the appellants was permitted to import second/defective cold roll grain oriented electrical steel sheets in terms of an import licence which was granted to them. The REP licenses which were issued were of two types. One of them permitted "items permissible in column 4 against product code no. 61-0010-00-010 appendix 17 of the import export policy 88-90/Vol.I/as amended subject to the conditions and restrictions laid down therein read with paragraph 204.1 of the import export policy 1990-93/volume 1. The second permitted "items allowed for import items allowed as per column 4 of appendix 17 against product code 610010-09 of import and export policy Vol. 1 of AM 88-91 amended upto date with face value restrictions and conditions stipulated therein." 2. The importations were made during the validity of import policy 1990-93. Paragraph 196 of this policy, one of the provisions of dealing with REP licence stated "notwithstanding anything contained in this policy, the importability of items against REP licenses shall be subject to the condition that the items in question continue to remain in the permissible appendices on the date of actual import; except in cases where specific protection has been provided for the prior commitments backed by the irrevocable letters of credit." In the impugned order, the Collector has taken view that this paragraph did not permit the import of the goods in question because they were listed in 1990-93 Policy in Appendix 2 part IIB which were not a "permissible appendix" but listed items restricted for import. He has also relied for support on the clarification issued by the licensing authority in response to a question posed by the Customs department as to whether the import of the goods was permissible.

3. We have reproduced above the nature of the goods; the condition subject to which the import was permitted in the licenses in question.

These conditions make it clear that the import was subject to the conditions and restrictions laid down in 1989-90 policy as amended. The second type of licence also made applicable paragraph 199 and 204(1) of the policy. The licence in virtually every case was issued during the currency of the policy 1992-93. The licensing authority while making these licences subject to 1989-90 would have been aware of the provisions of paragraph 196 of the 1990-1993 policy. The fact that 1990-1993 policy was not made applicable, or applicable only to the limited extent referred to above, leads to the conclusion that the licensing authority chose not to apply the provision of 196 of this policy to this licence.

4. These licences contained a condition on the reverse that they are is subject to the import policy in force relating to the goods as described in the policy, or any amendment made, up to the date of issue of licence unless otherwise specified. In the absence of any such specification, it is the policy in force of 1990-93 amended up to the date of issue of licence that would apply. The specific provision in the licence making applicable in the 1989-90 policy is a specification otherwise provided for in the condition that we have referred. It is therefore that policy that must apply, along with the restrictions and conditions therein.

5. The departmental representative cites the judgment of the Supreme Court in D. Navinchandra & Co., Bombay &. Am. etc. v. UOI and Ors.

-1987 (29) E.L.T. 492 and in Darshan Oils Pvt. Ltd. v. UOI-1995 (75) E.L.T. 32 in support of his proposition that it is the policy in force on the date of importation that would apply. The Supreme Court's judgment in D. Navinchandra & Co. related to specific importation made on the basis of REP licence issued, in accordance with its orders, to exporters of diamond and the issue revolved around interpretation of the terms "items which are specified under prevalent import policy at the time of import except in which items these exporters were permitted to import all other items canalised or otherwise." The observation of the Court in the judgment would not be capable of general application.

The Court's judgment in Darshan Oils Pvt. Ltd. related to applicability of import policy of 1983-84 so far as import under open general licence was concerned. The Court noted that it is the amended policy that would apply to the goods imported except in these cases where shipment had already made before amendment. This Judgement will not apply to the facts of the case.

6. The judgment of the Bombay High Court in Lokash Chemical Works v.M.S. Mehta, Collr. of Customs (Prev.), Bombay and Ors. - 1981 (8) E.L.T. 235 (Bom.) that it is not permissible for the customs department to question the validity of an import licence on the ground that it was in accordance with the policy, cited by the advocate for the appellant is however relevant.

7. The clarification of the licensing authority that the Collector and the departmental representative both have relied upon is no clarification at all. It merely repeated what would have been obvious to the Customs authorities that paragraph 196 of the 1990-93 policy would be "relevant" to licences issued during 1990-93 policy period.

This truism does not by any means attempt to answer the specific question which was posed to licensing authority in great detail by the Dy. Collector of Customs in letter of 9-5-1991. There is absolutely no evidence in coming to any conclusion in this matter.

8. From our discussions it must be concluded that it is the 1989-90 policy that would be for import for the licence in question subject to the face value restrictions contained in appendix 7 of paragraph 177 of the policy. We are told by the advocate for the appellants that import of these goods are within the limit. Subject to this condition, we allow the appeal and set aside the impugned order.

9. Appeal allowed and impugned order set aside. Consequential relief, if any.