Decided on May 28,1986



S.Kalyanam, - (1.)THIS appeal is directed against the order of the Collector of Customs, Madras, referred to supra confiscating under Section 111(d) of the Customs Act, 1962 (hereinafter referred to as the 'Act') read with Section 3 (2) of the Imports and Exports (Control) Act, 1947, disposable syringes and needles imported by the appellants and permitting redemption of the same on payment of a fine of Rs. 40,000/- under Section 125 of the Act in lieu of confiscation.
(2.)The appellants imported disposable syringes and needles valued at Rs. 2,30,395/- from Denmark in September 1985 under Open General Licence (OGL). Since the goods imported were not cartridge syringes and cartridge needles and were only hypodermic syringes and needles falling under Sl.No. 521 in Part-A of Appendix 3 of Import and Export Policy 1985-88, proceedings were instituted against the appellants by issue of a show cause notice which eventually culminated in the impugned order now appealed against.
The learned consultant for the appellants submitted that in respect of the identical goods imported by the appellants as well as others, the Customs authorities have permitted clearance of the same in previous years. It was specifically' urged that the appellants imported in October, 1983 identical goods and after due consideration the Customs Department permitted clearance of the same in the beginning of 19S4. It was further urged that the appellants themselves imported a similar consignment on 22.5.S5 and the same was cleared by the Customs authorities on 29.5.35. In substantiating this plea the learned consultant produced the relevant Bill of Entry. The learned consultant contended that in respect of import of identical and similar goods by M/s. Vishal Surgical Equipments Company, Madras, Delhi Surgical and Dressings, Delhi and M/s. K.B. IMPEX during 1984 and 1985, the Customs authorities permitted clearance of the same under OGL. This consistent practice of the Customs authorities permitting clearance of identical goods under OGL was also referred to in the reply to the show cause notice by the appellants and the same was not considered by the authorities. It was further contended that the appellants also produced the opinion of the licensing authority dated 5.12.83 to the effect that the goods imported are permitted for import as per Sl.No. 47 of Appendix 10 (page 148) of the Policy Book AM 1984 provided they are dental items. Reliance was also placed by the appellants on the opinion of Dr.B.P. Rajan, Principal, Madras Dental College, certifying that the samples of syringes and needles concerned in this case are disposable syringes and needles used in the field of dentistry vide his letter dated 23.11.85. It was urged that in the teeth of this opinion by the Principal of the Madras Dental College, the Department in fairness should have afforded the appellants an opportunity of being heard if the Department were to rely on a different opinion of the same authority against the appellants in respect of the goods imported and concerned in the case.

(3.)THE learned Departmental Representative submitted that even though in the reply to the show cause notice the appellants have referred to clearance of disposable syringes and needles under OGL as per Sl.No.48 and 48 (b) in List 6 of Appendix 6 of Import and Export Policy, 1985-88, no particulars with reference to Bill of Entry and date of clearance were given by the appellants. THE learned D.R. fairly conceded that if such clearance was permitted by the authorities the matter may be remitted back for reconsideration of the issue in the light of the consistent view taken by the Customs authorities permitting clearance of the same in the past. However, the learned D.R. also urged that if the earlier view of the authorities was not correct, that would not preclude the authorities from correcting themselves and therefore the mere past conduct of the Customs authorities in permitting clearance of identical goods cannot be the basis for permitting clearance of the goods concerned in the case, if such a clearance under OGL is not permissible in terms of the relevant Import Policy. THE learned D.R. placed reliance on the opinion of the Principal of the Madras Dental College dated 29.10.85 which is to the effect that the goods imported by the appellants are not cartridge syringes and cartridge needles. THE learned D.R. urged that the imported goods are general hypodermic syringes and needles and are not exclusively used for dental application.

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