Judgment:
1. The Revision Application filed before the Government of India against the order-in-Review No. 4/Collr./81 dated 17th October, 1981 passed by the Collector of Customs and Central Excise, Ahmedabad statutorily stood transferred to the Tribunal for being heard as an appeal.
2. The brief facts necessary for the disposal of the appeal are as under: The appellants, M/s. Ashwin Vanaspati Industries (P) Ltd., imported a consignment of 1022 M/Tons of crude stearin in bulk and sought clearance against a licence No. P/W/2915115/C/XX/77/8/79 dated 24.9.1979. They also filed a Bond on 16.10.1980 with the Assistant Collector of Customs, Kandla for a sum of Rs. 36,28,000/- and requested provisional assessment of the imported goods pending chemical test and submission of documents. The Proper officer of Kandla Customs assessed the said goods provisionally. He also allowed clearance of the goods under OGL in terms of para 179(5) of the Import Policy A.M. 1981.
3. The Collector of Customs and Central Excise, Ahmedabad, in exercise of his powers under Section 130 of the Customs Act (as it then stood), issued a review show cause notice dated 4.2.1981 alleging that palm stearin is a type of palm oil, further the importers was not an Export House as per para 169 of the Import Policy, further, the licences expired on 23.9.1980 and therefore not valid for import. Again that crude palm stearin has to be considered as a type of palmolein and that palmolein was a canalised item in the Import Policy A.M. 81 and therefore could not be imported against additional licences to which the licences produced belonged. It was further alleged that the importation of crude stearin is unauthorised because of the Public Notice No. 48-ITC(PN) 80 dated 9.12.1980 by which in Appendix 3 relating to banned item palm sterin palm kernel oil was added under item 368 and in Appendix 9 relating canalised item the entry palm oil (all types including palmolein) but excluding palm stearin/palm kernel oil, palm seed and these amendments shall be deemed to have been made in Import Policy for the period 1980 March, 1981 and therefore the import was unauthorised. On the above allegations, the Collector called upon the appellants herein to show cause as to why 500 M/Ts of crude stearin lying uncleared at Kandla should not be confiscated under Section 111of the Customs Act Customs Act and why penalty under Section 112 should not be imposed.
(a) the no quantity of crude stearin imported by them was lying uncleared at Kandla and therefore the question of confiscation would not rise and the show cause notice was based on misconception of facts and was bad in low.
(b) The period of validity of the licences should be made with reference to the date of shipment and not with reference to the importation and further having regard to the provisions of paras 205 and 207 of the Handbook of Import and Export Procedures 1980-81 the licence was valid upto 30.11.1980.
(c) Merely because Palm Oil and Palm Stearin are obtained from palm oil the three materials cannot be considered to be one and the same since their competition and characteristics would be different and they are known as to be different commodities in the trade and as such that crude palm stearin imported by the appellants was a canalised item, has no substance.
(d) The import licence was issued subject to the condition that the policy as applicable to the period to which it was issued, together with any amendment thereof upto the date of issue of the licence could be applicable to the licence. Therefore the import trade control Public Notice dated 9.12.1980 cannot be made applicable to the licence granted earlier.
(e) By issue of Public Notice the Government cannot ban with retrospective effect the import of any commodity so as to make the earlier imports which were valid according so as to make the Unauthorised.
(f) The Public Notice was not a Notification issued under Section 3 of the Imports and Export (Control) Act and therefore it has no statutory force.
(g) The Import Licence against which the goods were cleared was issued to an Export House, and therefore the importation has to be examined with reference to the import policy applicable in Export House and the policy did permit the import by the Export House and that similar imports were released at Kandla as well as Bombay and taking penal action against the firm would amount to discrimination and subjecting it to unequal treatment. They have requested that the show cause notice either be cancelled or withdrawn.
5. The Collector of Customs and Central Excise, Ahmedabad, after affording a personal hearing to the importers and after considering their contentions recorded his findings as follows: (i) The licence period had expired on 23.9.1V80. The Bill of Lading was dated 25.9.1980. The goods arrived at Kandla on 6.10.1980. The grace period cannot be claimed as a matter of right and therefore the importation was on a totally invalid licence, (ii) Palm Stearin is one of the palm oils. Accordingly Palm stearin falls under Appendix 3 with effect from 15.4.1980 and therefore is a banned item and as such the import of palm stearin by a private party is prohibited, (iii) That the importer can in no way be considered as an Export House on the strength of a letter of authority. Therefore, the importer cannot be considered as an agent or licence-holder.
6. Having regard to the above findings, the Collector held that the palm stearin is covered by Appendix 3 serial No. 368 of Import Policy A.M. 1981. It is therefore a banned item and also canalised item which cannot be imported by any party excepting the State Trading Corporation of India and therefore that the import of crude palm stearin in bulk weighing M/Ts 1022 is unauthorised and liable to confiscation. Since the goods have already been cleared, the Collector imposed a penalty of Rs. 3,63,000/- on the importers under Section 112 of the Customs Act, 1962.
7. During the hearing of this appeal. Shri Jaikar, the learned Advocate for the appellant, urged the following grounds: (1) The licence No. 2915115 was issued to Venilal's Export House Pvt. Ltd. The licence was dated 24.9.1979. The Export House issued a Letter of Authority dated 8th September, 1980 to the present appellants. The present appellants placed orders, opened Letters of Credit and the goods were actually shipped under three Bills of Lading dated 23.9.1980, 25.9.1980 and 27.9.1980. Paragraph 382 of the Handbook of Import-Export Procedures 1980-81 permitted the licence holder to appoint any person as an agent for arranging the imports and the appellants in importing the goods acted under the Letter of Authority and in the said circumstances the findings of the Collector that the imports by the appellants was unauthorised, is wholly incorrect and opposed to the policy too. As per the provisions of paragraph 205 of the Handbook of Import Export Procedure 1980-81, the date of expiry of any import licence falls before the last date of the month the licence will automatically be valid to cover the shipment made upto the end of that month.
Further, paragraph 207 of the Handbook provided a grace period of sixty days for shipment. The licence which was issued on 24.9.1979, though expires on 23rd September, 1980, having regard to the provisions of paragraph 205 and 207, the shipment could be effected not only upto 30th September, 1980 but also within sixty days grace period allowed under paragraph 207 of the Handbook. In the said circumstances, the finding of the Collector, that the import was not valid, is wholly illegal.
(2) The finding of the Collector, that palm stearin is a type of palm oil, is erroneous and it is against the view taken by the Government of India as well as the Central Board of Excise and Customs in several cases. The Collector also failed to notice that physical and chemical characteristics of palmolein and palm stearin are different. Palmolein and palm stearin are not considered as palm oil. They are derivatives of palm oil inasmuch as they are fractioned products.
(3) The Collector also committed an error in holding that Public Notice No. 48 dated 9th December, 1980 would govern the import. This Public Notice dated 9th December 1980 has no retrospective effect.
It had come into force even much after the arrival of the goods and also after the Bill of Entry were entered.
(4) The Collector's interpretation of Supreme Court judgment in Bharat Barrel & Drum Manufacturing Co. Pvt. Ltd.' s case is totally incorrect. The Supreme Court in the said case has held that the Public Notice would not operate retrospectively or affect the imports permissible under licence issued prior to the issue of the Public Notice.Supreme Court (Bharat Barrel & Drum Mfg. Co. Pvt. Ltd. v. Collector of Customs, Bombay) and also on the unreported decision of the Bombay High Court in Stretch Fibres (India) Ltd. and Ors. v. Union of India and Ors. decided on 9th-10th and 11th January 1980 in Misc. Petition No. 1419 of 1979, in support of his contention, that the Public Notice No. 48 dated 9th December, 1980 has no retrospective effect and it could apply only to licence which were issued subsequent to the date of Public Notice. In support of his contention that palm stearin is not palm oil, Shri Jaikar relied on the following decisions: (1) Order No. 395 of 1982 dated 10.9.1982 passed by the Central Board of Excise & Customs, (2) Order No. 291-292 of 1982 dated 6.7.1982 passed by the Central Board of Excise & Customs, (3) Order No. 280 of 1982 dated 29.6.1982 passed by the Central Board of Excise & Customs, (4) Government of India Order dated 26.9.1980 in Godrej Soaps Ltd. and Ors. reported in 1981 E.L.T. 72, page 72, 1980 Cen-Cus 618D. (5) Order No. 171A-189A and 190-B of 1982 dated May 28, 1982 passed by the full Bench of Central Board of Excise and Customs reported in 1982 ECR 530D (CBEC).
9. Shri Jaikar further submitted that the orders passed by the Central Board of Excise & Customs and the Government of India are binding on the Collector and the Collector was unjustified in not relying on those orders and taking a view different from the view of those authorities and imposing an unreasonable penalty.
10. Shri Pal for the Respondent Collector made the following submissions: (1) The Licence did not specifically authorise to import palm stearin. It is the additional facility which was conferred on the Export House that enabled the Export House to import of palm stearin. The Government has the prerogative to change or modify the policy and in exercise of that prerogative if the Government changes its policy the importers would be bound by the modification effected in the policy and the Public Notice dated 9.12.1982 banned for import of palm stearin and therefore the Collector was justified in holding that the import was unauthorised.
(2) The Policy as it stood at the time of import did not authorise any person other than the canalising agency from importing palm stearin. In this connection, Shri Pal relied on item 5(iv) of Appendix 9. Since palm stearin was a canalised item neither the Export House nor its letter of authority holder could validly import palm stearin against the additional licence granted to the Export House during the relevant policy.
(3) Palmolein and palm stearin are two fractions of palm oil and therefore the Collector was justified in holding that at the relevant time the item in question was canalised.
(4) Admittedly, the palmolein was specifically included in the canalised item and palm stearin being another fraction of palm oil is deemed to have been included under item 5(iv) of the Policy.
(5) Palmolein and palm stearin are not chemically different. Palm stearin is a processed palm oil.
(6) The licence was an additional licence and it was not transferable. Issuing a letter of authority amounts to transfer of licence and therefore the import by the transferee was not valid.
(7) If an item of the policy is capable of two interpretations and if the interpretation put by the Customs authority is a possible interpretation, the same should prevail having regarding to the decisions of the Supreme Court reported in 1963 Supreme Court page 1319 and 1973 Supreme Court page 194.
(8) The expression used in item 5(iv) of Appendix 9 was "including palmolein" and therefore the meaning of palmolein gets expanded so as to include all other fractions of palm oil including palm stearin. Regarding the scope of inclusive definition, Shri Pal placed reliance on the decisions of the Supreme Court .
(9) The decision of the Board and the Government of India are not binding on the Tribunal, though they may have persuasive value Further, the decisions of the Board were based mainly on the assumption that what had been canalised are only edible variety and not non-edible variety and this assumption of the Board is incorrect and therefore the Board's decisions arc not applicable to the present import. Shri Pal placed reliance on the decision of the Delhi High Court dated 20.12.1984 in Writ Petition 4037 and 4038 of 1982. In support of his contention that what had been canalised are not only edible variety but also non-edible variety. Finally, Shri Pal submitted that the penalty imposed by the Collector works out to roughly 10% of the c.i.f. value and therefore the order of the Collector does not require any interference.
11. In his reply, Shri Jaikar, however, contended that the policy enunciated in Appendix 9 intended to cover both crude and refined types of palm oil but then what had been canalised is only palm oil both crude and refined and palmolein and seeds and not palm stearin.
12. We have carefully considered the submissions made on both the sides.
Having regard to the rival contentions, the following questions emerge for consideration: (1) Whether the import of palm stearin by the appellants is unauthorised as held by the Collector, (2) Whether the licence dated 24.9.1979 was not valid at the time of actual shipment as has been held by the Collector, (3) Whether palm stearin is a type of palm oil as has been held by the Collector and therefore a canalised item and as such impermissible for import under OGL, and (4) Whether the Public Notice 48 of 1980 dated 9.12.1980 is retrospective in that that it comes into effect from the date af publication of the policy viz. A.M. 1981 on 15.4.1980 as has been held by the Collector or prospective as has been contended by the appellants.
Point No. 1 : According to the appellants, they are the letter of authority holder of the licensee. They contended that M/s. Venilal Export House Pvt. Ltd., Bombay are the holders of licence No. 2915115 dated 24.9.1979 and they executed a letter of authority in their favour. On 8th September, 1980 this letter of authority was given under para 382 of Hand book. By reason of this letter of authority they became entitled to place orders, open Letter of Credit and to perform all other functions for the utilisation of licence. It was also contended that this letter of authority was produced during the personal hearing. The Collector, in his order, had observed that Such a letter of authority had not been produced either along with the letter dated 14.3.1981 or even during the course of personal hearing. This observation of the Collector does not appear to be correct If there was no such letter of authority the Collector need not have discussed the applicability of para 382. But the Collector did discuss the implication of para 382 and recorded a finding that the importers cannot be considered as an agent for licence holder. Even assuming that what has been observed by the Collector was correct, the Collector could have given an opportunity to the appellants to produce the letter of authority before actually deciding the issue against them. The appellants have produced a photo copy of the letter of authority in their favour. According to the order of the Collector the Assistant Collector has assessed the Bills of Entry provisionally and allowed clearance under OGL. The Collector reviewed the order of the Assistant Collector and issued the show cause notice. Before the Assistant Collector the licence was produced. The Assistant Collector must have been satisfied that the appellants were the letter of authority holders or else on the face of the licence he could not have permitted clearance or could provisionally assess the goods It is possible that the letter of authority produced by the appellants was not linked to the file, paragraph 382 of the Handbook at the relevant time, permitted issue of letter of authority by the licence holder. In the said circumstances, the finding of the Collector that the appellants are not authorised to import, cannot be accepted. The contention of Shri Pal that because the licence is a non-transferable licence and by issue of a letter of authority there was a transfer and the transfer being illegal the import also should be considered as unauthorised, cannot be accepted. The Policy did not prohibit issuing a letter of authority in respect of non-transferable licences. By issuing a letter of authority, the licensee does not transfer the licence, he only authorised to carry out certain duties and obligations of the licence holder by the letter of authority holder. The ownership of the goods would remain with the licence. We therefore reject Shri Pal's contention.
Point No. 2 : From the order of the Collector, it is seen that in the invoice, the licence number shown was E/W/2915115 dated 24.9.1980 but in the Bill of Entry the licence number shown was the same but the date was given as 24.9.1979. The Collector at one place observed that this was deliberately done. For the purposes of his finding the Collector however relied on the licence dated 24.9.1879. To hold that the licence was not valid at the time of shipment, the Collector took into consideration the actual arrival of the goods and since the goods had arrived on 6.10.1980 he held that the licence was invalid because the grace period allowed cannot be claimed as a matter of right. During the hearing of this appeal, Shri Pal restrained in making any comments regarding the view taken by the Collector.
Admittedly, the licence is dated 24.9.1979. The validity period is 12 months. Therefore it expires on 23.9.1980. Paragraph 205(2) of Handbook of Import Export Procedures 1980-81 reads: Where the date of expiry of an import licence falls before the last date of a month, the licence will automatically be valid to cover shipment made upto the end of that month.
By reason of this paragraph the validity period of this licence gets extended upto the end of September, 1980.
Para 205(1) reads : "The validity of an import licence is decided with reference to the date of actual shipment/despatch of the goods from the supplying country and not the date of arrival of the goods at an Indian Port". Thus it is clear that the date of arrival of the goods has no relevance in determining the validity of the licence. The validity depends upon the date of actual shipment. The three Bills of Lading are dated 23rd September, 25th September and 27th September, 1980 respectively. All these are before 30.9.1980, within the extended validity period of the licence. In the said circumstances, the appellants are not even required to rely on the grace period of sixty days provided under paragraph 207(1) of the Hand Book. The Collector, in our opinion, had committed an error in assuming that the validity of the licence is dependent on the date of arrival of the goods. We, therefore, hold that the licences were valid when the goods were shipped.
As regards the permissibility of palm oil, it is clear that "Palm Stearin" is as much a type of palm oil as palm olein. The party has also agreed that palmolein and palm stearin are two fractions of palm oil having fatty acids in different proportions which results in physical variation. PORAM Technical Committee of the Palm Oil Refiners Association of Malaysia, 1980 shows that palm stearin is one of the palm oils. The table shows as the back of figure 2 (page 11 & 12 of the Brochure) showing the "Flow diagram of single fractionation process, of palm oil" shows that the fatty acids composition, range of slip point, Ivalue and cloud point for palm oil, palm olein and palm stearin are almost in equal proportions.
The order in review No. 208B of 80 dated 20.9.1980-reported in 1981 Excise Law Times, deals with the liability of excise duty on palm olein vis-a-vis palm oil, and the ratio discussed in that order cannot be invoked in this case, or there is no paramateria. The issue before us whether the palm stearin can be imported under the OGL and the import policy of April 1980-81.
13. As regards the question of permissibility of palm stearin under OGL vide para 175 of Import Policy, it is seen that the amendment issued under Public Notice No. 48/ITC (PN) 80 dated 9.12.1980 specifically implies that the said amendment shall be deemed to have been made in the said import policy which was published under the Department of Commerce Public Notice No. 9/1TC/PN dated 15.4.1980. Accordingly palm stearin falls under Appendix 3 with effect from 15.4.1980. Appendix 3 gives a list of banned items. Further serial No. 368 covers palmitic acids, palm fatty acid and serial No. 669 covers all consumer goods, howsoever described of industrial, agricultural or animal original, not (i) appearing individually in Appendix 5 & 8 or (ii) specifically listed for import under OGL Appendix 4 and Sr. No. 669 covers all consumer goods howsoever described of industrial agricultural or animal origin not appearing individually in Appendix 5 & 8 or specifically listed for import under OGL, bringing all of them under the banned list. In view of the above, import of palm stearin by a private party is prohibited except as per Appendix 9 of the Import Policy." 14. As has been earlier, the import has been allowed by the Assistant Collector. The Collector had sought to review the Assistant Collector's order in exercise of his power conferred under Section 130 as it then stood. The Collector had issued a review show cause notice. In the said show cause notice, the allegation made was "further the Chief Controller of Imports and Exports, New Delhi vide their Public Notice No. 48-ITC(PN)81 dated 9.12.1980 added palm stearin/palm kernel oil in Appendix 3 and palm oil (all types including palmolein but excluding palm stearin, palm kernel oil)/palm seeds in Appendix 9". It was further stated that this amendment deemed to have been made in the import policy for A.M. 1980-81 published on 15.4.1980. But while recording his finding, the Collector had considered the import as falling under Sr. No. 669 of Appendix 3 and therefore the import was impermissible. In the case of review show cause notice, the Collector cannot traverse beyond the show cause notice. He will have to confine himself to the allegations contained in the review show cause notice.
This is because the party will have no opportunity to meet a new or fresh ground, or a ground which was not included in the review show cause notice. The Collector therefore was not justified in recording the finding behind the back of the appellants that the item imported fall under Sr. No. 669 and therefore banned item. With this we proceed to examine the finding of the Collector that palm stearin is a type of palm oil and that it was canalized during the policy period and was also banned at the time of import by reason of Public Notice No. 48 of 1980 dated 9.12.1980. To hold that palm stearin is a type of palm oil, the Collector had entirely relied upon a brochure titled PORAM issued by the Technical Committee of the Palm Oil Refiners Association of Malaysia. This brochure relates to the history of refining of palm oil in Malaysia, the refining is done by two processes : (1) Alkali-Refining and Fractionation Processes (2) Physical Refining and Fractionation Processes. The same processes are applied for refining crude palmolein and crude palm stearin. The resultant products are RBD palm oil, RBD palm olein and RBD Palm Stearin. The processes of fractionation is for separating the liquid fraction (olein) and solid fraction (stearin) of palm oil. It is thus clear that palmolein and palm stearin are the components of palm oil. And in the said circumstances, it cannot be said that palmolein by itself or palm stearin by itself is a palm oil or a type of palm oil as has been held by the Collector. There is no evidence that palm olein or palm stearin is known commercially or in trade parlance as palm oil. The Import Policy also treats them separately.
15. Appendix 9 of A.M. 1981 contains the list of canalised items Oils and oil seeds are listed under item 5. Sub-item 4 reads "Palm oil (all types including palmolein)/palm seeds. If palm oil and palmolein are one and the same, as has been held by the Collector there was no need for the policy maker to include palmoleia when they had specifically mentioned palm oil. Further, according to the Collector, palmolein and palm stearin are types of palm oil. If that be so, it is not clear why palm stearin alone should have been included in the banned list in the Public Notice No. 48 of 1980. There was no evidence before the Collector regarding the physical and chemical properties of palm oil, palmolein and palm stearin. There was no trade opinion also. In the absence of such evidences, the Collector, in our opinion, was not justified in taking a view that palm stearin is a type of palm oil.
16. The question whether palm stearin is a type of palm oil came up for consideration in several decisions of the Central Board of Excise & Customs. The Board consistently held that palm stearin is different from palm oil.
17. The Collector had observed that palmolein and palm stearin are types of palm oil. In Godrej Soaps Ltd. and Ors. reported in 1981 page 72 the Government of India (3 Members Bench) considered the question as to whether palmolein is the same as palm oil. Before the Government of India, Shri S.S. Ray, Senior Advocate contended that palmolein is nothing but processed palm oil. Shri Ray further submitted that Notification No. 150/64-CE exempt palm oil falling under item 12 of Central Excise Tariff. He emphasised that the palm oil covered by the said Notification is deemed as processed Palm Oil inasmuch as unprocessed palm oil, of, in other words, crude palm oil is exempted under another Notification No. 33/63-CE, dated 1.3.1963. It was also urged before the Government of India that as palmolein is derived by process of fractionation from palm oil, palmolein is nothing but processed palm oil and as such the same should also be exempted from additional duty under the aforesaid notification No. 150/64-CE. It may be stated here that the finding of the Collector was also to the effect that palmolein and palmstearin are derived processes of fraction palm oil and therefore palmolein and palm stearin are types of palm oil. The Government of India considered the contentions of Shri Ray and rejected the same by observing "that the terms 'processed palm oil' would only suggest refined, bleached or deodorised or R.B.D. palm oil. The meaning of processed V.N.E. oil has been clearly explained in Notification No.33/63-CE, dated 1.3.1963, and therefore, the Government of India do not find any room for doubt or dispute in this regard. Fractionation cannot as such be considered as a process falling within the scope of the said Notification No. 33/63-CE. As a matter of fact, fractionation is a manufacturing process which is undertaken with the aid of power as a result of which a manufactured product distinct from palm oil as known to the market, comes into being. The products so obtained which is classifiable under item 12, C.E.T. constitutes V.N.E. Oil of a sort different from palm oil both technically, as well as from the point of view of name and character in trade parlance. Viewing the same question from another angle, the Government observe that palmolein in its crude form could be obtained from crude palm oil without undergoing the process of refining, bleaching and deodorising as admitted by the importers in para 1.23 of their statement. The crude palmolein so derived out of crude palm oil could not by any stretch of imagination be described as processed palm oil as the same is refined, bleached or deodorised. Government, therefore, consider that the plea of palmolein being nothing but processed palm oil is not sustainable".
18. Before the learned Collector, the above decision of the Government of India was cited. The Collector brushed aside the said decision by observing that it deals with the liability of excise duty on palmolein vis-a-vis palm oil and the ratio discussed in that order cannot be invoked in the present case as there is no parimateria. The distinctions sought to be made by the Collector in our opinion, is the result of non-application of the mind or non-comprehending the ratio of the decision. No doubt that the Government of India was concerned with the liability of excise duty on palmolein but the basic question was whether palmolein was the same as palm oil. The Government held that fractionation is a manufacturing process which is undertaken by the aid of power as a result of which a manufactured product distinct from palm oil as known to the market comes into being. The product so obtained was different from palm oil both technically as well as on the point of view of name and character in trade parlance. The Government categorically rejected the contention of Shri Ray that palmolein is nothing but processed palm oil. The ratio of the decision of the Government of India as well as the Board in the various cases referred for earlier applies to the facts of the present appeal in all fours.
Shri Pal, appearing for the Collector had submitted that the orders of the Board and the order of the Government of India are not binding on the Tribunal. They may not be binding on the Tribunal but they certainly have persuasive value. We agree with the ratio of those decisions.
19. The next aspect that remains for consideration is whether palm stearin was canalised during the policy period A.M. 1981. The Collector did not hold that palm stearin was canalised during the policy A.M.1981. This contention was raised by Shri Pal before us. This contention is based on the wording of the policy. Sub-item 4 of item 5 of Appendix 9 in A.M. 1981 policy read : "Palm oil (all types) including palmolein/palm seeds" Shri Pal contended by the inclusive definition the policy makers intended to cover palm stearin which is like palmolein is obtained from palm oil. It was also contended by Shri Pal the expression 'included' has the effect of expanding the meaning and once palmolein was included, the policy makers did intend to include palm stearin also. We are unable to accept this contention of Shri Pal.
It is not that policy makers were unaware of the product "palm stearin". If they intended to canalise palm stearin also they could have as well as included the same specifically in sub-item 4 of item 5 of Appendix 9. The words "all types" would apply to palm oil and not to palmolein. Apparently by inserting words "all types" the policy makers intended to canalise not only edible type of palm oil also but also nonedidle type. It is significant to note that in the Public Notice No.48 of 1980 dated 9.12.1980 the policy makers placed palm stearin in the banned list Appendix 3. Palmolein was to include palmstearin as contended by Shri Pal the policy makers would have included palmstearin as one of the canalised items along with palmolein and certainly would not have included it in the list of banned items under Appendix 3. The subsequent conduct of the policy makers clearly establishes that the contention of Shri Pal that the policy makers intended to include palmstearin as a canalised item in the Policy A.M. 1981 is not correct.
We therefore reject the contention of Shri Pal that the expression "including" expands the meaning of palmolein so as to include all other fractions of palm oil including palm stearin. The decision of the Supreme Court relied on by Shri Pal are not applicable to the issue involved in the present appeal. The question before us was whether palm stearin was included in the list of canalised item during the policy A.M. 1981. We have after due consideration held that the policy A.M.1981 did not include palm stearin as one of the canalised items, 20. With this, we come to the last question namely whether the Public Notice No. 48 of 80 dated 9.12.1980 is retrospective and that it takes effect from 15.4.1980 the date on which the Policy A.M. 1981 was issued. It is settled now that Public Notice is non-statutory. All non-statutory orders and notices will have operation prospectively and not retrospectively. A vested right cannot be divested by non-statutory orders or notices even if they are worded as having retrospective effect. It is only by legislative process that vested right can be divested with retrospective effect.
21. The above apart even the wording of the Public Notice No. 48 of 80 dated 9.12.1980 is not such as to come into operation on the date of issue of the Policy A.M. 1981 as has been held by the Collector. In the case of Notifications or orders, which are intended to have retrospective effect, the expression normally used is that the Notification or order shall be and shall always be deemed to have been made on such and such a date. Such an expression is not found in the Public Notice No. 48 of 1980. The Collector's interpretation of the Supreme Court judgment in M/s. Bharat Barrel & Drum Mfg. Co.'s case is inapt. The Supreme Court has categorically held that Public Notice is non-statutory and it has no retrospective effect. The same view was taken by the Bombay High Court in M/s. Stretch Fibres Ltd. 22. On careful consideration of all the aspects, we hold in Point No. 3 that Palm stearin is not a type of palm oil, and we further hold that it was not canalised during the policy A.M. 1980-81. On point No. 4, we hold that Public Notice 48 of 80 dated 9.12.1980 is not retrospective and it does not come into effect from the date of publication of the policy A.M. 81 but is only prospective.
23. In the result, for the reasons stated in the preceding paragraphs, we allow this appeal, set aside the order passed by the Collector. The penalty, if paid, shall be refunded to the appellants.