1. This appeal is directed against the order of the Collector (Appeals) bearing No S/49- 270/84L dated 22.11.1984 confirming the order-in-original No S/10-254/84A dated 20.9.1984 with a modification that the redemption fine imposed may be reduced to Rs 4000/-.
2. The appellant imported nutmegs valued at Rs. 15.984/- from Singapore, and sought the clearance of the consignment in the month of August 1984 under OGL, claiming the same permissible under entry No 48 of List 4 to Appendix 6 of Policy AM 1984-85 and OGL No 15/84 issued on 12.4.1984, and filed Bill of Entry No 915/2. The clearance was however objected to by the Department on the ground that it was a canalised item under Appendix 5 of the Policy 1984-85, and also that the entry No 48 in List 4 of Appendix stood deleted as early as 17.4.1984 by issue of the Public Notice. Notice to show cause was accordingly issued and in reply thereto, the appellant submitted that OGL No 15/84 issued in exercise of the powers conferred under Sec 3 of the Import and Export Control Act 1947 permitted import of nutmegs under OGL and that in accordance with the said OGL he placed an order on 14.4.1984, opened a letter of credit with the Bank of Oman Ltd and that subsequent amendment in the Policy by issue of Public Notice No 20-ITC (NP)/84 dated 17.4.1984 made known to the Public by issue of Trade Notice on 25.4.1984, could not affect the right to import the item imported. The adjudicating authority, however did not accept the contention of the appellant, and held that import was unauthorised, and ordered confiscation of the same, but granted option to pay fine of Rs 16.000/- in lieu of confiscation. The appellant went in appeal before the Collector (Appeals), who confirmed the finding of the Assistant Collector as regards unauthorised import and also the order of confiscation, but reduced the redemption fine in lieu of confiscation to Rs 4000/-.
3. Mr. J.C. Patel, the learned advocate for the appellant, produced a copy of OGL No 15/84 and submitted that entry No 8 in the Schedule to the said OGL permitted import of "Crude drugs required for making Ayurvedic and Unani medicines appearing in list 4 of Appendix 6 of AM Policy 84-85" and then pleaded that Nutmeg are mentioned at the entry No 48 in the said list. He conceded that the said entry is deleted vide Public Notice dated 17.4.1984 but submitted that, besides the fact that the order was already hooked and also a Letter of Credit opened prior to the issue of the said Public Notice, the OGL 15/84 is issued as per the provisions of Section 3 of the Import and Export Control Act, 1947, and has a statutory force which cannot be altered or modified by a mere Public Notice and submitted that if any alteration or modification was called for in the OGL, it could be done only by revoking the said OGL No. 15/84 and issuing another OGL. In support of his said submission, the learned advocate relied upon one unreported decision of CEGAT-ERB in Appeal No. C/152/84 decided on 25.11.1986, and another of Delhi High Court in Kaplan Enterprises v. Union of India . According to the learned advocate, till that is not done, the OGL No. 15/84 as it stood on the date of issue, subsists, and notwithstanding the subsequent deletion of entry No. 48 from the list 4 of Appendix 6, import of nutmeg under OGL is permissible. He has also submitted that, the order was booked and L/C was opened prior to deletion of the entry, and such deletion cannot affect the import of goods ordered prior to the deletion. As regards nutmegs included in Appendix 5 the learned advocate submitted that there ii nothing in the OGL No. 15/84 that OGL issued is subject to the provisions of Appendix 5. He also referred to the foot note No. 1 to list 4 of Appendix 6 of the Policy and submitted that though reference is made to the entries in other Appendices of the Policy providing that entries in those Appendices, if they also appear in list 4 were not permissible to be imported under OGL, no mention is made therein to Appendix 5. He also referred to Para 242 of the Policy and inviting attention to Clause (f), submitted that import of Nutmegs under OGL is expressly provided in list 4 to Appendix 6 and hence the general prohibition imposed thereunder would not stand attracted.
4. Shri SP Prabhu, the JDR appearing for the Department, submitted that right from the day, the Policy AM 1984-85 was implemented nutmegs were included in Appendix 5 making them as canalised item, importable under OGL only through the specified agency, and that provisions of Appendix 5 would override the provisions of Appendix 6. He also submitted that Para 242(f) of the Policy, clearly indicated that if the same item was referred to in Appendix 5 as also elsewhere, the import under OGL is not permitted, and that there is nothing to show that the Policy clearly allowed its import under OGL. Mr. Prabhu also contended that, entry No. 48 in list 4 of Appendix 6, has been deleted by a Public Notice, on 17.4.1984, and its effect is that it should be deemed \o have never existed. Asian alternative argument, he submitted that even otherwise, when the consignment was shipped and reached the Indian Port, the entry No. 48 already stood deleted from list 4, and vide provisions of Chapter VIII of Hand Book of Import and Export Procedures the relevant date is the date of arrival.
5. Mr. Patel, in reply submitted that Chapter VIII of the Hand Book pertained to only the validity of the licence, and would not stand attracted in the present context.
6. The factual position not being in dispute, two points arise for determination: (i) Whether, by virtue of inclusion in Appendix 5, import of Nutmegs under OGL was permissible; (ii) If yes, whether by virtue of Public Notice dated 17.4.1984, whether the import of the consignment under question is affected.
7. Taking up the first point, Nutmegs were the items specified in both appendices 5 and 6 when Import Policy AM 1984-85 was implemented. To overcome the situation arising out of such entries, provision is made in para 242 of the Policy, as to how inter se, interpretation of the entries in various appendices as well as under Open General Licence ought to be made and Clause (0) thereof reads as under: (f) Any item in Appendix 2 to 5, or 8 with a specific or a generic description, will preclude the eligibility to its import under Open General Licence, except where the Policy allows this clearly.
Reading of the same, indicates that if the Policy clearly allows the import under OGL. the restriction laid down vide Appendix 5 would not stand attracted.
8. Here despite Nutmegs mentioned as canalised item in Part B of Appendix 5, the same were entered at entry No. 48 in list 4 of Appendix 6, which pertains to "Import of Items under Open General Licence". In OGL No. 15/84 there is also clear mention that item of list 4 of Appendix 6 are permitted to be imported under OGL. A foot note is put below It 4, where, there is no mention of entries in Appendix 5. With specific mention of Nutmeg in List 4 of Appendix 6, it has to be construed that, that was the item clearly allowed by the Policy to be imported under the OGL notwithstanding the inclusion in Appendix 5.
9. Under the circumstances, the objection raised that because Nutmegs are made canalised item, import under OGL is not permissible cannot be sustained. ' 10. The second point that remains to be considered is, what is the effect of deletion of entry No. 48 from list 4. Undisputedly nutmegs were specified as permissible item in serial No. 48, when the Policy was implemented and the entry came to be deleted only on 17.4.1984.
There is no challenge to the plea that order was booked on 14.4.1984 and Letter of Credit was opened on 16.4.1984, when the entry was existing. Public Notice No. 20-lTC (PN)/84 dated 17.4.1984 provides that the said entry "shall be deemed to have been deleted". The Public Notice does not indicate that the said "errata" is made operative with retrospective effect, and that the entry referred to therein be deemed to have never existed. Under the rules of interpretation, unless the contrary appears, all such modifications have to be deemed to have prospective effect. Thus, till 17.4.1984, import of Nutmegs can be taken as permissible under OGL and as such the placement of order on 14.4.1984 was legal and valid. The letter of Credit has been opened on 16.4.1984, i.e., prior to the date of deletion and it is an irrevocable letter of credit. When, thus, the firm contract appears to have been entered into which at the relevant lime was legal and valid, the actual receipt of the consignment at any later date, cannot be considered as unauthorised. The point very similar to one here, was before the CEGAT East Regional Bench in Appeal No. C/152/84 decided on 26.11.1986, where relying upon several decisions of various High Courts and the Supreme Court (Mahindra & Mahindra v. Union of India AIR 1979 S.C. 794) amongst other points, it is held that subsequent change in the Policy cannot effect the transaction entered into earlier.
11. Under the circumstances, the order of confiscation, holding the import as unauthorised, cannot be sustained.
12. The appeal accordingly stands allowed. The consequent reliefs may be granted.