- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CUSTOM REFERENCE NO.2 OF 1995 ... EMM Libas Pvt.Ltd. ...Applicant v/s. The Additional Collector of Customs, Mumbai ...Respondent ... Mr.P.A.Savant with Mr.Mohan Salian i/b Gagrats & Co. for the Applicant. Mr.R.V.Desai with Mr.Y.R.Mishra for the Respondent. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 29TH SEPTEMBER, 2008 P.C.: 1. Following questions of law were framed while - 2 - calling for forwarding the statement of case- 1. Whether on the facts and circumstances of the case, the Tribunal was right in holding the imports made by the Applicant as unauthorised under Section 111(d) of the Customs Act? 2. Whether the Import Policy AM 84 which was announced on the 15th April 1983 could be said to be applicable with effect from 1st April 1983? 3. Whether the applicants import made pursuant to a contract entered into in February 1983 and under a Letter of Credit opened on 13th April 1983 could be said to be covered under the AM 84 Policy which was announced the 15th April 1983? 4. Whether the provisions of para 255(1) of AM 84 Policy could be given retrospective effect? 5. Whether the date 1st April 1983 mentioned in para 255(1) in AM 84 Policy could be read as such when the Policy itself was announced on the 15th April 1983? 6. Whether the present case where there were first commitments before the change in the provisions of the Policy, could the import be said to be invalid under Section 111(d) of the Customs Act? 7. Whether when interpreting the provisions of the Policy two interpretations were possible, the one beneficial to the applicant ought to have been considered? 2. The facts that are material and relevant are that import licence dated 29th January, 1983 was issued in favour of the Applicant. The goods that he would import were mentioned thus "as per paragraphs 186(5)(8) & (9) of AM 83 Import Policy". The period - 3 - of shipment was 12 months from the date of issuance of licence. According to the Applicant, he entered into a contract with Itoman & Company Ltd. Japan in the month of February, 1983 for importing portable Generators. He opened a letter of credit in the month of April, 1983. Goods were shipped on 30th September, 1983. Admitted position is that in the month of April, 1983 the Government effected change in its import policy, as a result of which the import of Generators which the Applicant was to import was banned. When the goods arrived at Bombay, they were seized and confiscated, and penalty & 100% redemption fine was imposed on the Applicant. 3. The order of the Adjudicating Authority was confirmed by the Appellate Authority. The Appeal before the Tribunal also failed. The Tribunal has held that because of change of policy and conditions contained in the licence issued in favour of the Applicant, on the date on which goods arrived at India Port the import of the goods was banned according to policy then in force and therefore confiscation of the goods of the Applicant cannot be faulted. - 4 - 4. We have heard the learned Counsel for both sides. In our opinion, in view of the admitted position that there was change in the policy decision of the Government effected in April, 1983, whereunder import of Generators which the Applicant was to import was banned and that the same policy existed on 30th September, 1983, the date on which the goods arrived in India port, in view of the conditions which were contained in the import licence granted to the Applicant, the question of law No.1 has to be answered in affirmative. 5. Condition No.1, which according to us is material, of this licence, reads as under:- "This licence is granted under the Government of India, Ministry of Commerce and Industry Order No.17/55 dated the 7th December 1955 as subsequently amended issued under the Imports and Exports (Control) Act 1947 (XVIII of 1947) and is without prejudice to the application of any other prohibition or regulation affecting the importation of the goods which may be in force at the time of their arrival." - 5 - 6. Perusal of the above condition shows that the licence was issued subject to the condition that on the date on which the goods imported pursuant to the licence arrived, the import of the goods should be in accordance with law in force on the date of the arrival. As observed above, admittedly the goods arrived on 30th September, 1983 and as per the law in force on that date import of those goods was banned. In our opinion, therefore, no fault can be found with the action of the authority in seizing and confiscating the goods. The question No.1 is, therefore, answered in affirmative. 7. In view of the above answer, it is not necessary to record any answer to the other questions of law. Reference disposed of. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)