M M EXPORTS Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THESE appeals arise out of six separate Orders of the Collector of Customs, Madras, dated 26-11-1987 and 16-12-1987. Since the issues involved in these appeals are identical they are all heard together and are disposed of by this common Order.

(2.) The facts in brief are that the appellants imported various quantities of almond in shell for which they produced REP import licence issued against G.2 (i)(a) of Appendix 17 of import policy for April-March 1985-88. Appellants M.M. Exports, A.S. Mehta & Co. and Rajendra Enterprises filed four B/E each for identical quantities of 5500 lbs in each B/E and each to the value of Rs. 77,828/. These quantities are equivalent to 2494.75 Kgs in each B/E. Similarly appellants General Traders filed 4 B/E for which value in each B/E was declared Rs. 97,008/-; M/s. Shangvi Amritlal Chunnilalji filed two B/E with value of Rs. 66,130/- and Rs. 80,840; Arun Agencies in one B/E to the value of Rs. 97,008/-. The Custom House took the view that the goods imported, namely, Almond in shell, is nothing but dry fruits, of which there is no cultivation in India on a large scale, and that it is a consumer item of agricultural origin, falling under Serial No. 121 of Appendix 2 Part B of the import policy, the import of which is restricted, and not to be allowed against REP licence, except when an item is specifically mentioned therein in terms of para 5, Appendix 17 of the policy. It was also found that the import of dry fruits require specific licences under the policy. Show cause notice was therefore issued to the appellants. Personal hearing also granted to them which was availed of by some of them while others chose to have their case decided on the basis of written replies to the Show cause notice. The Collector after considering the written and oral submissions found that the licences produced were not valid to cover the import of Almonds in shell, which he held to be consumer goods, and confiscated the goods and levied redemption fine of Rs. 1,50,000/- against each B/E filed by the appellants A.S. Mehta, Rajendra Enterprises and M.M. Exports under Section 111(d) of the Customs Act, 1962, and imposed personal penalty of Rs. 10,000/- on three appellants under Section 112 thereof. The redemption fine in the case of appellant General Traders was Rs. 1,75,000/- in each B/E filed by them and for Shangvi Amritlal Chunnilalji redemption fine was Rs. 1,20,000/- in respect of one B/E and Rs. 1,50,000/- in respect of another B/E; in the case of Arun Agencies the fine was Rs. 1,75,000/-. The penalty on the appellant General Traders was Rs. 10,000/-; on Shangvi Amritlal Chunnilalji Rs. 5,000/- and on Arun Agencies Rs. 3,000/-.

(3.) THE learned Counsel Shri Thyagarajan appearing for the other appellants while adopting the submissions made by the learned Counsel Shri Habibulla Badsha, urged that para 5 of Appendix 17 contains general condition that no import of item appearing in Appendix 2 shall be allowed against REP licence except if the item appearing in Appendix 2 Part B is specifically described for import either under column 4 or under column 5 of the Appendix, he pointed out. It is, therefore, clear that the item must appear in Appendix 2 Part B and Almond described as such does not appear in Appendix 2 Part B. In such a situation it cannot be said that Almonds are covered by Serial No. 121 by a process of logic or deduction, because as.per para 5 of Appendix 17 it should appear in Appendix 2 Part B as such.