S.P.KOTVAL, J. - (1.)THIS appeal comes to me on a difference of opinion between Tarkunde J. and Vimadalal J. On a previous occasion when I had heard the appeal an objection was taken that in the original order of reference dated April 24, 1968 the points on which the learned Judges differed had not been stated and that therefore such a statement was necessary having regard to Clause 36 of the Letters Patent. I had therefore made an order on March 14, 1969 requesting the learned Judges to state the points on which they differed and which required decision by me. By an order passed on March 21, 1969 the learned Judges have now stated the following questions for my decision : - 1, Whether the Assistant Collector of Customs was wrong in holding that the black insulating tapes imported by the respondent fell within the expression 'adhesive tapes' in entry No. 38 in Part II of the Policy Statement in the Red Book.
(2.)IF so, whether this Court can, in the exercise if its powers under Article 226 of the Constitution, interfere with the impugned order of the Assistant Collector of Customs. The facts upon which this reference has arisen lie within a narrow compass. On August 3,1961 the respondent P. S. Lullaas the sole proprietor of Messrs. P. S. Lulla & Sons was granted a licence to import goods of the following description 'Electric insulations including presspahn ( electrical grade) but excluding ebonite rods, tubes and sheets'. The particular entry of the Import Trade Control Schedule (hereinafter referred to as the I. T. C. Schedule) under which the licence was granted was entry No. '38/11' by which is implied the entry No. 38 in Part II of the I. T. C. Schedule. At the foot of the licence there is an endorsement to the effect that - This licence will be subject to the conditions in force relating to the goods covered by the licence, as described in the relevant Import Trade Control Policy Book, or any amendment thereof made up to, and including the date of issue of the licence, unless otherwise specified. With the other conditions of the licence I am not as such concerned in this reference. 2. Acting upon this licence the respondent imported 10 cases of 'black insulating tapes' from Japan by the Section s. 'Nakashi Maru', The goods arrived some time about April 3, 1962. The value of the goods is insignificant being Rs. 995 but on behalf of the Collector it was stated before the Division Bench that it was a test case and therefore although other consignments of adhesive tapes were allowed to pass, the Collector took objection to these consignments. On April 24, 1962 the Collector called upon the respondent to show cause why penal action should not be taken against him and the goods confiscated under Section 167, Clause (8) of the Sea Customs Act because 'the import licence No. 208515/61 issued against Ser. No. 38/11 of the I. T. C. Schedule produced is not valid to cover the goods imported, for the reasons mentioned on the reverse'. The reason mentioned was 'The Black Insulating Tapes in question are adhesive tapes. The import of adhesive tapes is banned vide remark (ii) against Serial No. 38/11 in the relevant I.T.C. Policy Book'. This view of the Collector was challenged by the respondent in a letter which he wrote on May 4,1962 in reply to the show cause notice. The respondent contended; Without prejudice to the aforesaid the firm submits that apart from the bare allegation that the goods in question are adhesive tapes there is no evidence or material disclosed in support of the said statement if by that it means that the goods imported are adhesive tapes only and cannot be used for electrical insulating purposes. The firm repeats that the goods imported are used for electrical insulating purposes only and that adhesiveness is one of the incidental qualities required for such use. The firm further submits that the primary use of the said tape is insulating tape. The firm states that no consumer of adhesive tapes would buy insulating tapes which may have adhesive quality as an insulating tape is more expensive and is a product known and available in the electrical market as distinct and different from the adhesive tape which is known and available in the medical market. The firm further points out that insulating tapes and adhesive tapes have different ingredients, different uses and different sets of sellers and' buyers and are (sic) different goods having distinct and different uses. The respondent also pointed out to the Collector that several consignments of adhesive tapes had been allowed to pass and that there was no reason why this consignment should have been objected to. By a subsequent letter of July 13, 1962 the respondent also furnished to the Collector a certificate issued by the electrical Merchants Association and certificates issued by 24 leading electrical dealers and merchants certifying that the goods in question were known in the trade as black insulating tapes only and not as black adhesive tapes as was sought to be suggested. The respondent offered to produce evidence in that respect.
The Assistant Collector of Customs, however, stuck to his objection and on August 28, 1962 passed an order holding that the licence did not cover the goods imported and that therefore the goods were imported in contravention of Section 8(2) of the Imports and Exports (Control) Act, 1947. He therefore confiscated the goods under Clause (8) of Section 167 of the Sea Customs Act read with Section 3 of the Imports and Exports (Control) Act, 1947. He also gave the importers an option under Section 183 of the Act to pay in lieu of such confiscation a fine of Us. 2,000 and clear the goods for home consumption. An additional option was also given to re -ship the goods on a fine of Rs. 100 to the country of consignment viz. Japan.

(3.)BEFORE I state the reasons which prevailed with the Collector of Customs for the view which he took it is necessary to refer to the relevant part of entry No. 38 of Part II of the I. T. C. Schedule under which the licence was granted. It is as follows : Part and S. Description Licensing Policy for Validity of Remarks.No. of I.T.C. Authority. Established Licences.Schedule. Importers.38. Electric insulations in - Ports. 20% Six months. i) ...cluding presspahn ( electrical ii) Quota licenceselectrical grade), but will not be validexcluding ebonite for the import ofrode, tubes and sheets. adhesive tapes,adhesive tapecloth in rolls andsheets andphenol resin laminated in the form of sheets, rods and tubes, including such phenol resin laminated under the trade names of Bake lite and Tuffnel. The Collector relied upon the second entry in the Remarks Column and held that the black insulating tape which the respondent had imported were adhesive tapes and therefore whether ' these are sold in the market as black tapes or Black insulating tapes is immaterial.' On behalf of the respondent reliance was placed before the Collector on the Index to the I. T. C. Policy Book and it was pointed out that both black insulating tapes as well as adhesive tapes are not shown as distinct and separate categories under the heading 'electric insulations' in the Index. The Collector answered the point by holding that the Index to the I. T. C. Policy Book is a guide for policy which is enunciated by the remarks in the remarks column against the relevant serial number. Both the adhesive tapes and black insulating tapes are shown in the Index as falling under serial No. 38/11 under the heading 'Electric Insulations'. The tapes in question are insulation tapes. They therefore fall under serial No. 38/11. They are also adhesive. They therefore fall under 'Adhesive Tapes' the import of which is banned, according to the remarks against serial No. 38/11 in the policy book. The Collector also held that The term 'Adhesive tape' is not a trade or brand name. It indicates a tape which is adhesive and since this term appears against S. No, 38/11 it indicates a tape which is adhesive which may also be an insulating tape. The separate enumeration in the Index cannot have the effect of negotiating the policy laid down in the remarks against the serial number.