1. This is an appeal directed against the order in original bearing No.KCH/Collr/10/90 dated 22-10-1990, holding the appellants' goods (life saving equipment - Homodialysing machines with spare parts), which were offered for export under S/Bs dated 2-12-1988 as liable to confiscation under Section 113(d) of the Customs Act. Since the goods were allowed export provisionally, on execution of bond by the appellants covering the full value of the export goods, with a cash deposit of Rs. 6 lakhs and Bank Guarantee of Rs. 10 lakhs, the Collector in the adjudication order, imposed a penalty of Rs. 50 lakhs (goods having been already released provisionally and not being available for confiscation) and directed appropriation of the cash deposit, enforcement of bank guarantee and also directed the appellant to pay up the balance of Rs. 34 lakhs. The present appeal is against the aforesaid order.
2. After hearing the elaborate arguments of Shri Habbu the learned advocate for the appellants and Shri Mondal for the Department, the following undisputed factual position is evident: (i) The consignment of 53 Homodialysing machines with spare parts exported to U.S.S.R. under different S/Bs all dated 2-12-1988, were imported against B/E. No. 6078 dated 14-10-1988 filed for clearance of the goods for home consumption; (ii) The goods were imported under OGL - Sr. No. 27 of list 2 of Appx. 6 of AM 88-91 and also allowed clearance free of duty for home consumption under Notification No. 208/81 dated 22-9-1981. Only certain consumables were charged to duty on import; (iii) On examination of the goods at the time of export, they were found to be in original packing. These goods on clearance for home consumption were claimed to have been taken to the appellant's factory at Ankeleswar for repacking and they were presented for re-export on 2-12-1988 by filing S/Bs at Kandla Customs House; (iv) The date of import as per B/E being 19-10-1988 the date of filing S/Bs for re-export is 2-12-1988 i.e. within less than two months); (v) The goods were exported to U.S.S.R. on F.O.B. value of Rs. 3.31 crores as against import value of Rs. 2.34 crores. It is claimed by the appellants that the goods were exported to U.S.S.R. for the Armenian ... earth quake victims. Only on that ground, provisional release for export was ordered.
(vi) When the matter was referred to C.C.I. & E., New Delhi he has intimated that the goods imported under OGL are meant for use within India and import for stock and sale meant that the items were for home consumption and not for export.
(vii) After getting this letter from C.C.I. & E., adjudication order was passed.
3. The main thrust of the arguments of the Id. advocate for the appellants can be summed up as below: (i) Prescribing a restriction on re-export of goods imported against licence (including OGL) without permission of C.C.I. & E. was first introduced only by inserting sub-clause 4(b) to Clause 5 of Import Control Order, by an amendment dated 12-3-1990. Hence, it cannot be retrospectively applied with penal consequences. Prior to the amendment i.e. 12-3-1990, no permission from C.C.I. & E. was called for, in respect of goods imported under OGL. The goods were imported in October, 1988 and cleared in November, 1988 and exported in December 1988; (ii) Para 24(1) of Import Policy AM 85-88 cannot be interpreted to mean that he is the law maker. He can give clarification or interpretation, when certain matters in the policy are ambiguous. He cannot interpret the law. If the interpretation is contrary to the provisions of law, the citizens of the country cannot be bound by such a clarification. Para 24(1) cannot take away the right of the citizens. (Citation - Bharati Surgical Co. - 1991 (52) E.L.T. 472 (Tribunal).
(iii) The wishes of the legislature cannot be questioned by the judiciary. Interpretation of statutory order is to be done on the plain meaning of the words used in the statute and cannot go with the intentions, which are not expressly provided for in the statute.
(iv) Where a word is not statutorily defined, the court may take the dictionary meaning of that word and select the meaning given in the dictionary appropriate to the context. In this case, the words used are 'for stock and sale' and 'sale' has been defined in the Concise Oxford dictionary as exchange of a commodity for money. Hence it is not permissible to interpret the term 'sale' as only within the country and not extending to sale to a foreign buyer.
(v) The Delhi High Court in the case of Janak Photo Enterprises [1990 (49) E.L.T. 339] have held the view on a prima facie consideration that C.C.I. & E.'s clarification is not correct and there is no provision of law stating that the goods, which have been imported could be sold only within the country. The Sale of Goods Act does not give such a restricted meaning to the term 'sale' as sale within the country. Hence, the term 'sale' appearing in Notification No. 15/88 - where it is prescribed that the goods can be imported 'for stock and sale', cannot be restricted to sale within the country.
(vi) It is not relevant to go into the question whether the goods, having been imported by spending hard currency, had been exported against rupee payment by U.S.S.R. The Government does not make any distinction between export to U.S.S.R. or to other countries. Even export to U.S.S.R. bring us back goods in return like crude oil, armaments etc. Hence, such a view taken sniffing at the export to U.S.S.R. in terms of rupee payment, is not a sound one; (vii) By importing the Haemodialysers of c.i.f. value of Rs. 2.34 crores and by exporting them on f.o.b. value of Rs. 3.31 crores, there has been no loss to the country. The country has gained Rs. 97 lakhs, which is a positive gain. The scarce resources have not been frittered away in this deal but there is a gain and added value; (viii) It is not correct to say that exemption Notifications under Section 25 of the Customs Act are only intended to cover the goods imported for use and consumption in the country. The goods imported under Advance Licensing Scheme are cleared free of duty under an exemption and likewise goods imported into Free Trade Zones are also exempted. All the same they are exported; (ix) There is no ban or restriction on export of Haemodialyser in any of the schedule of the E.T.C. order.
4. Shri Mondal, the Id. SDR for the Department, put forth the following in reply: (i) Even the goods imported and bonded were allowed for export only as ships stores as per saving clause 11(d) of I.T.C. Order 1955 as prevalent during the period of import and export of the impugned goods. When such is the case, goods cleared for home consumption cannot be authorised for export without any manufacture.
(ii) In this case, goods have been cleared for home consumption availing OGL benefit for stock and sale for those in India. There was no whisper at the time of import that they are going to sell the goods to a foreign country. When they have entered the goods for home consumption, the term 'stock & sale' can only be taken to mean that it is for sale in the country. The analogy of D.E.E.C. exemption or exemption for imports in Free Trade Zones are not apt; because what is permitted for import under these schemes is only components, raw materials etc. required for export production and in the case of Free Trade Zone, even machinery for export production is permitted. It is not the case of the appellants that they have subjected these goods imported to some processing and enhanced their values. They claimed to have done only repacking (which is also doubtful) because the examination report alleges, that the goods were in original packing as they were imported. They have declared that the goods are meant for home consumption and on that basis, OGL benefit and duty exemption were allowed. These benefits are meant only for Indian Public. If they are to be diverted by way of export with some condition, it can be done with the permission of C.C.I. & E. In fact in this case, the appellants were agreeable for such a reference to C.C.I. & E. and cleared the goods for export on furnishing a bond. Having agreed to this position, it is not now open for them to condemn the clarification from C.C.I. & E. and try to wriggle out of the bond by saying that C.C.I. & E.'s clarification is not legal and is not binding on them. He referred to the judgment of the Delhi High Court in Jain Exports' case [1987 (29) E.L.T. 753 - paras 28 & 29]; (iii) The citation made by Shri Habbu - namely Janak Photo Enterprises - 1990 (49) E.L.T. 339 is not a case law. That High Court have clearly indicated that it is their prima facie view. They are yet to go into all the aspects of I.T.C. Order as also E.T.C. order and the clarification issued by C.C.I. & E. was not accepted only, on a prima facie consideration of the arguments on hearing stay petition. The Hon'ble High Court is yet to take a final decision. Hence this is not a case law, which can bind the Tribunal to follow the same. Now the Bench is deciding on the appeal and hence all aspects of the issue including the points of law canvassed by either side are to be gone into and a proper decision taken.
(iv) There is a clear design for profit earning in this deal by draining hard currency and exporting to Rupee payment country. It is not motivated by any humanitarian consideration for helping the earth quake victims of Armenia, nor it [cannot] Should be "can" - Ed. be accepted that the gain is for the country's exchequer because they have availed exemption on claim for home consumption. The gain is only to the pocket of the appellant and that too at the expense of drain of hard currency and also at the misery of earth quake victims. Hence no leniency is called for and considering the profit earned to the extent of nearly about Rs. 1 crores, penalty of Rs. 50 lakhs is justified.
5. After hearing both the sides, we feel it necessary to consider first the question whether the Delhi High Court prima facie view in Janak Photo Enterprises (Supra) on a similar case can be taken as a case law to be followed in this case. It is an accepted legal position that at the stage of interim order passed on stay petition, the judicial forum does not go into the merits of the arguments in greater detail nor can it go into all the provisions of law canvassed by either side. That is why the view taken is termed prima facie. Even the Delhi High Court in para 8 of the judgment have clearly indicated that the view taken by them is only prima facie view and is subject to final determination in the petition. As such it is not the "case law" having any binding effect. On going through the said judgment, we find that the prima facie view was taken only on the following facts and ground: Photographic films imported and bonded under OGL were sought to be re-exported and it was alleged that the goods cannot be allowed re-export - being in violation of Export (Control) Order, 1972 and the adjudication order was based on a clarification from C.C.I. & E dated 25-5-1989. This was challenged by the petitioners. The Court held the prima facie view on appreciation of the following position noticed by them during hearing of stay petition : (i) The photographic films are allowed import to all parties for actual use/stock and sale. The objection was that sale could only be in India and hence could not be re-exported. This is not correct, because 'sale' does not have such restrictive meaning as confining only to sale in India.
(ii) Only items included in the schedule to Export Control Order are under control. Since this item is not covered in the schedule, it is freely exportable; (iii) There is no provision of law cited that goods imported into the country can only be sold in the country itself and C.C.I. & E. does not appear to have clarified the position correctly; (iv) There is no dearth of photographic films in the country requiring to be conserved and export of the goods to Singapore would result in earning of foreign exchange for the country.
6. Though in the present appeal before us, somewhat similar arguments are advanced, there are some subtle differences noticed. In that case, the goods were bonded on import and it appears that the saving clause 11(d) of I.T.C. order was not amended to confine the re-export of bonded goods only to export as shipstores (This appears to be the position because if it is otherwise, this would have been brought to the notice of the Hon'ble High Court by either side). In the present case before us, amended saving clause 11(d) restricting re-export of bonded goods only for re-export as ship stores has come into play, but these goods have been cleared on a declaration on B/E as for home consumption. There the goods were exported to Singapore and not to Rupee payment country as in this case. The Court considered only the scope and interpretation of 'sale' and in the absence of provisions of law being cited before them, the Court took a prima facie view that stock and sale need not be restricted to sale within India. Even though it is a prima facie view, it is the view of the High Court expressed in specific terms based on the position noticed at the interim stage. We cannot discard it as not binding or of no use, on the ground that it is not a case law. We would give due respect to the extent it is called for. But we are also entitled and required, in all fairness to either side, to go into all the aspects of facts and the points of law, while disposing of the appeal at the final hearing stage. This is what we propose to do now.
7. We have no difference, on the prima facie view taken by the Hon'ble High Court of Delhi that the term 'sale' cannot only be restricted to sale within the country. Such a restrictive interpretation cannot be given, unless it is explicitly stated in the order. But the admitted position in this case is that the goods were entered for home consumption. Warehousing is also resorted to, in respect of goods imported but cleared ultimately for home consumption. It also provides for export of such warehoused goods without payment of duty (vide Sec.
69 of the Customs Act). When such warehoused goods are exported without payment of duty, the Govt. have thought it fit to place an embargo by not allowing such re-export excepting as shipstores. From the amended provision of clause 11(d) of the I.T.C. order [which apparently has not been considered by the Delhi High Court, presumably because it relates to period prior to amendment of clause 11(d)] it is clear that when goods have been bonded and sought to be re-exported under provision of Sec. 69 of the Customs Act, without payment of duty, that export can be confined only to the cases of export as ships stores and not otherwise.
This position was not considered by the Hon'ble High Court, which we are to consider in this case, because the amended clause 11(d) of Import Control Order has come into play during the period of Import and Export of the impugned goods. Though the clause 11(d) is applicable to bonded goods, we cannot but fail to take note of the fact that even for bonded goods cleared for export without payment of duty, bar is applicable for re-export except as ships stores. If the proposition that clause 11(d) cannot be invoked in this case is accepted, because the goods have been cleared for home consumption, then in every import of goods bonded initially without payment of duty, clause 11(d) can be easily circumvented by first clearing the goods for home consumption and then file SIBs for their export. Hence, when goods imported are cleared under declaration for home consumption for stock and sale, can such a sale be construed as meaning sale anywhere in the world? Declaration on the B/E has a considerable significance and only on the basis of such declaration and statements made on the B/E, concessions and relaxations are given. If a person having filed a B/E for home consumption and claimed OGL benefit for stock and sale, can the authorities at the time of import, imagine that the goods are cleared by the appellant for re-export? The answer can only be in the negative.
Hence in the context of their clearance for home consumption straightaway without bonding, no one can even visualise that the importers have brought the goods only for re-export, after stocking in India. 'Export' as per the definition of the Customs Act means taking the goods out of India. It can be by way of sale or even otherwise.
'Clearance for home consumption' means clearance for consumption in the home state. If the B/E is for home consumption, it can only be taken to mean clearance for consumption in India. The Id. Advocate has cited the exemptions applicable to free trade zones, D.E.E.C. scheme. We would also like to add 100% expprt oriented unit and Import-export pass book scheme, where goods are cleared on home consumption Bills of Entry.
There is a subtle distinction between these exemptions vis-a-vis a general exemption granted to life saving equipments in this case in Public interest. In the cases of D.E.E.C. schemes, free trade zones, goods allowed exemptions are raw materials, components etc. required for export production with the requirement of fulfilling the export obligation. The materials are actually consumed in this country for export production. In this case, life saving equipments have not been subject to any process of manufacture (in other words, consumed or utilised) for production of export goods. They are exported as such (after repacking as claimed by them). Hence, we see considerable force in the contention of Shri Mondal that life saving equipments cleared free of duty and under OGL for stock and sale in the country on the basis of the Bill of entry for home consumption can only be taken to mean that they are meant for benefiting the Indian Public. It is also an accepted position of law that laws of the country are meant for regulating the activities of the citizen in that country and are meant for benefiting the citizens of that country. In the case of Customs Act and Import and Export Control Regulations, the law can also affect transactions across the country; but when the term 'sale' is to be construed in the context of clearance for home consumption, in our humble view, it cannot be visualised that sale can be anywhere in the world. But we are not going to base our conclusions only on this view, since the Delhi High Court's judgment on prima facie consideration has taken a slightly different view, which is to be respected. In all fairness, we must also observe that the arguments were not presented in the above manner before that Court. Even accepting for the sake of arguments that OGL permits imports for stock and sale including sale abroad and sub-clause (4B) was inserted only subsequently, we are now to consider whether even without such an insertion, goods imported under OGL for stock and sale can be re-exported without permission from C.C.I. & E., as per the I.T.C. order, prior to insertion of sub-clause (4B) to clause 5 of I.T.C. order. That is what we propose to do now. On going through the I.T.C. order as prevalent during the period of import and export of the impugned goods. (reproduced as Appx. 1-B of the Handbook of Procedures AM 88-91), we observe a particular clause - namely clause 10C of I.T.C. order, which is reproduced below: "10C. Power to make directions for the sale of imported goods in certain cases -(1) Where, on the importation of any goods or at any time thereafter, the Chief Controller of Imports and Exports or an authorised officer is satisfied after giving a reasonable opportunity to the licensee of being heard in the matter, that such goods cannot or should not be utilised for the purpose for which they were imported he may by order direct the importer of the goods in case the goods were imported under Open General Licence or Special General Licence or the licensee or any other persons having possession or control of such goods to sell such goods to such person within such time, at such price and in such manner as may be specified in the direction.
(2) The price that may be specified under sub-clause shall be the aggregate of the landed cost of the goods, clearing and transportation charges and such other incidental charges incurred in relation thereto as are considered reasonable in the circumstances of the case by the Chief Controller of Imports and Exports or an authorised officer.
(2-A) Where goods are imported through the State Trading Corporation of India, the Minerals and Metals Trading Corporation of India or other similar institutions or agencies owned or controlled by the Government or any other recognised agency, and such goods are allotted to any person, opportunity of being heard in the matter shall be given to such person also.
(3) The licensee or the person to whom any direction has been made under subclause (1) shall be bound to comply with such direction." 8. From the above, it is evident that where goods are imported under O.G.L. or Special General Licence and they cannot be or should not be utilised for the intended purpose, the C.C.I. & E. or an officer authorised in this regard can pass orders, after due hearing the parties affected, directing the importer of the goods or the licensee or the person having possession of such goods to sell such goods to such persons in such manner as per the direction and the price for sale shall be the aggregate of landed costs of the goods, clearing and transportation charges and the incidentals, as may be considered necessary for inclusion. In the case before us, the goods have been cleared for home consumption for stock and sale. It is not the case of the appellants that they have been consumed or utilised in export production and such manufactured goods were exported. When the goods were cleared for home consumption under O.G.L. but diverted for export, they have to subject themselves to the order passed by the licensing authorities as per clause 10C of I.T.C. order. This clause is also applicable to O.G.L. imports (vide clause 11(4) of the I.T.C. order).
Hence in our view, when goods cleared for home consumption under O.G.L.
are sought to be diverted for export, clause 10(C) can be invoked by the C.C.I. & E. This is not made applicable only to any particular class of goods, to which cl. 10C can be applied. The wording of clause 10C does not suggest that this power is applicable only to certain goods. It applies to all imported goods covered by O.G.L. or Special General Licence. With this enabling power in the hands of the C.C.I. & E., can we view that C.C.I. & E's clarification is wholly redundant or illegal. This power is conferred by a statutory order. With this power available in the hands of C.C.I. & E., when a reference is made to them that goods cleared for home consumption for stock and sale (in the home state obviously home consumption goes with consumption or utilisation in the home state) are sought for export, it falls within his discretion to allow the goods for sale even to a foreign buyer subject to such condition as laid down in clause 10C. If, in the interest of maintaining cordial relationship with an earthquake affected country, export is to be allowed, he would have allowed it at the price as fixed by him in accordance with the provisions of clause 10C. If by exporting to Russia, we can meet the immediate requirement for our country, he would have passed an order of sale to a buyer in Russia. These are matters of international traded foreign policy and also involving considerations of balance of trade/payment inter se among the different countries. An individual cannot, on his own, after clearing the goods for home consumption and exporting it on a profit of Rs. 94 lakhs, claim that he has benefited the country to this extent. The I.T.C.order even prior to insertion of Clause 4B, has clearly envisaged this in clause 10C. It is a matter to be decided by the C.C.I. & E. He has decided this according to his best judgment. We are aware that intimation from C.C.I. & E. in this case is not an order passed under clause 10C. We only refer to the enabling power to hold that C.C.I. & E.'s clarification cannot be discarded as illegal or improper even prior to insertion of clause 4B. If the appellants had approached the C.C.I. & E. (if as claimed by them that the export was motivated on humanitarian ground for helping earthquake victims in Russia), it must be known to the appellant that he could not reap a profit out of the deal; because of the condition of price fixation under clause 10C. That is why to make the matter more explicit, the specific clause 4B also been introduced subsequently. We don't agree that prior to the insertion, the C.C.I. & E. had no power to interfere in such cases of diversion. We, therefore, do not and would not like to go into the merits of the arguments, whether exports to hard currency countries are to be preferred to that to Rupee payment countries. It all hinges on the matter of public policy with the national interest being kept in view. Such a view is not possible to be taken by an individual on his own. We also find that in this deal, a clean profit of Rs. 94 lakhs has been made by the appellants without approaching C.C.I. & E. for an order under clause 10C. We must also observe that provisions of cl. 10C was not considered or argued before the Delhi Court, when the prima facie view was taken. In this view of the matter, we see no merit in the appeal and hence dismiss the same.
9. Before parting, we would like to meet the arguments of Shri Habbu to the effect that the Bond was given for getting the clarification from C.C.I. & E., on account of the detention of the goods required by U.S.S.R. urgently and there was no other option. The goods were admittedly imported under O.G.L. for home consumption in India. If they are to be diverted for export, they should have taken the precaution of getting the order from C.C.I. & E., for which legal provisions exist already. Since they have not chosen to do it, they were required to clear the goods on a bond agreeing to abide by the clarification from C.C.I. & E. In the circumstances, the binding nature of the clarification also can not be underestimated. If the goods have been exported purely out of humanitarian ground on a no profit-no loss basis, it is quite likely that C.C.I. & E. would have approved of such an export. When it is clearly discernable that export is only for the appellants' own profit, it is only expected of C.C.I. & E., who is vested with powers under cl. 11(C) of I.T.C. order, to refuse to give permission for diversion for exports, on profit motive, in a case, when the goods were cleared under O.G.L. for home consumption into India.
Viewed from this angle also, the appeal is liable to be dismissed.
10. Though no alternative plea for reduction in penalty was made, we looked into the question on our own. It is an undisputed position that the appellants have earned a margin of profit to the extent of Rs. 94.00 lakhs in the export deal, which has been held by us, as not authorised under the policy and the diversion of goods imported under OGL for home consumption to export, being motivated by this profit consideration, when the goods are not available for confiscation and release on redemption fine, penalty amount should have to take care of this margin. Hence, in this view, we are not inclined to modify the quantum of penalty imposed. In the result, the appeal is dismissed.
11. I have the privilege to go through the order proposed by Brother R.Jayaraman, Member (Technical), and endorse the findings given and conclusions drawn, I would however like to contribute further to strengthen the conclusions proposed to be drawn.
12. Admittedly the subject goods were imported vide B of E No. 6078 dt.
14-10-1988 and were cleared as O.G.L. item figuring at Sr. 27 of List 2 of Appx. 6 of the Policy AM 1988-91, and that the clearance was free of duty in view of Notn. No. 208/81 dt. 22-9-1981. The subject goods were however exported to USSR vide Shipping Bills dated 2-12-1988, i.e.
within two months of their import. At the time of export, it was felt that export of the goods imported under O.G.L. being nowhere contemplated, required specific approval from the Import Control Authority, and hence the export was objected to, but allowed on the appellant executing a Bond for full value of the goods, with cash Deposit of Rs. 6.00 lakhs and Bank Guarantee of Rs. 10.00 lakhs.
Thereafter a reference was made to C.C.I. & E., who clarified that goods imported under O.G.L. were meant for use within India. As the appellants had contended that import being permitted also for stock and sale, and that sale also included sale to a foreign country, the C.C.I.& E. also clarified that stock and sale meant that the items were for home consumption and not for export.
13. Mr. R.K. Habbu, the Id. Counsel appearing for the appellant emphasised principally on the point, that sub-clause 4(b) to clause 5 of the Import Control order, requiring permission from C.C.I. & E., was introduced for the first time on and from 12-3-1990, i.e. subsequent to subject import and export and that the clarification given by the C.C.I. & E. cannot become a law. In the submission of Mr. Habbu, when the O.G.L. permitted import for stock and sale, with the word "sale" having not been given any restricted meaning, the "sale" included "sale to a foreign country" and to substantiate his said plea, placed reliance on the decision of the Delhi High Court in Janak Photo Enterprises (P) Ltd. v. Union of India - 1990 (49) E.L.T. 339 (Del.) He also pleaded that grant of exemption from duty vide Notn. No. 208/81, with no reservations or restrictions imposed, did not any way come in the way of the appellants exporting the said goods.
14. Brother Jayaraman, Member (Tech.), has examined the issue from various angles and has negatived the contentions raised by the Ld.
Counsel for the appellants, and it is not necessary to re-exercise on the same grounds, to which I concur.
15. I would however like to add that even the prima facie views expressed by the Delhi High Court in Re: Janak Photo Enterprises (supra) are however in relation to the provisions of O.G.L.
simpliciter, i.e. where the items imported though under O.G.L., are cleared on payment of requisite duty. Here, however, the facts are slightly different, inasmuch as, the items imported not only fall within the O.G.L. entry, but are further granted exemption from duty and are imported by availment of such exemption benefit, and it is in the light of these special circumstances, that the question of permissibility of export has to be considered.
15A. Notn. No. 208/81 dt. 22-9-1981 as subsequently amended from time to time, is issued under the powers invested in the Government of India, vide Sec. 25(1) of the Customs Act, and the wordings of the notification, inter alia, read :- "The Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts goods specified in the Schedule annexed hereto when imported into India....
The entire notification relate to grant of exemption from duty to Life Saving Drugs, medicines or equipments.
16. Taxation is shaped by ideology and by economic policy, and though there does exist freedom to carry on trade or business, as envisaged in the Constitution of India [Art. 19(1) (g)], the system of Tariff and licencing for import and export is considered as a reasonable restriction. The needs of the country, the position of foreign exchange, need to protect national industries and all other relevant considerations have to be taken care of by the Central Government and as such it could be idle to suggest that there could be unfettered and unrestricted freedom of export and import (Bhatnagars & Co. v. Union of India, AIR 17. Sec. 25 of the Customs Act, 1962 which is an enabling provision to exempt an item, otherwise liable to duty from payment thereof, and the same empowers the Government to grant such an exemption, if it is in "public interest". The word "Public interest" has been defined in Aiyar's Judicial Dictionary (10th Edition) thus "This expression means act beneficial to general public. It means action necessarily taken for public purpose". The word "public" in relation to laws applicable to Indian Sub-Continent, necessarily menas Indian Public, unless contrary is provided. Thus, whatever exemptions are given by virtue of Sec. 25 (1) of the Customs Act, have to be interpreted as the one meant to benefit Indian Public. The distinction between "public" and "individual" being explicit, calls for no further deliberation.
18. Reverting back to the Notn. No. 208/81, full exemption from payment of duty is granted to certain categories of drugs, medicines and equipments, which are taken as life savings and such exemption is granted "in the public interest" when "imported into India", and the implied or a built-in condition that can be read as existing is that such imported items are used in India for the benefit of Indian public.
Any view contrary thereto, in my humble opinion, could frustrate the very essence of the whole exemption notification. Similar exemptions granted on other counts also had specific purpose, in relation to the Indian public.
19. It is true that the O.G.L. permits the imports for stock and sale, when the Delhi High Court, though expressing & prima facie view has held that the sale can also be to a foreign buyer, the propriety requires that the same ought not be discarded, though there may exist some reservations in relation thereto. Here, however, the case is on a different footing. To reiterate, here the import of O.G.L. item is coupled with availment of benefit of total exemption from duty, intended to be so given in the public interest, and the appellants having availed of such exemption benefit, and having cleared the goods for home consumption by filing the Bill of Entry in that regards, have committed themselves to receive and retain the goods for stock and sale within India, and as such their export to a foreign country has to be held as not permissible; "Sale" in this context has to be taken as sale in India.
20. In the result, I concur with Brother R. Jayaraman, as regards the conclusion drawn and dismiss the appeal.