Case: Collector Of Customs. Calcutta Vs. M. Shashikant And Co

exporters who were granted additional Licences under the Import Policy 1978-79 and had opened and established irrevocable letters of Credit before October 18, 1985 should be permitted, notwithstanding the construction we have placed on the order dated April 18, 1985 of this Court, t o clear the goods imported, or to be imported, by them pursuant to such irrevocable Letters of Credit. In other words, all imports effected perusant to such Letters of Credit should be deemed to have been legally and properly made, and should entail no adverse consequences whatsoever .........At the same time we make it clear that diamond exporters who pursuant to the issue of Additional Licences under the Import Policy 1978- 79 have opened and established irrevocable Letters of Credit on or after October 18, 1985 will not be entitled to the benefit of this order." 10. The respondent in this case entered into contract with the foreign exporter on May 5, 1986 much after October 18, 1985 and as such is not entitled to relief under the above judgment. 11. The order dated April 18, 1985 (Rajnikant case) and also the judgment dated March 3, 1986 in Raj Prak ashs case were considered by this Court in Indo-Afghan Chambers of Commerce &Anr. v. Union of India &Ors. etc. 1986 (3) SCR 88. Pathak, J. (as he then was) speaking for the Court summed up the legal position as under: "only such items could be imported by diamond exporters under the Additional granted to them as could have been imported under the Import Policy 1978-79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongfully refused, and were also importable under the Import Policy prevailing at the time of import, which in the present case is the Import Policy 1985-88. These were the items which had not been "specifically banned" under the prevalent Import Policy. The items had to pass through two tests. They should have been importable under the Import Policy 1978-79. They should also have been importable under the Import Policy 1985-88 in terms of the order dated April 18, 1985..........In our opinion the r espondents diamond exporters are not entitled to import dry fruits under the Import Policy 1985-88 under the Additional Licences possessed by them. They are also not entitled to the benefit extended by the judgment of this Court dated March 5, 1986 to those diamond exporters who had imported items under irrevocable Letters of Credit opened and established before October 18, 1985. It appears from the record before us that the respondents diamond exporters opened and established the irrevocable Letters of Credit after that date." * 12. In Union of India v. M/S Godrej Soaps Pvt. Ltd. 1986 (3) SCR 771 decided on September 12, 1986 this Court finally considered the judgments in Raj Prakash and Afghan Chambers cases and approved the ratio therein in the following words: "In respect of Palm Kernel Fatty Acid which is a canalised item listed as item 9 (v) in Appendix V Part B of the Import Policy 1985-88, there is no provision in that policy which permits the import of such item by an Export House holding an Additional licence. Therefore, the claim o f the diamond exporters, or, as in this case a purchaser from the diamond exporter, must fail because it is not open to import by the diamond exporter, under any provision of the Import Policy 1985- 88......In this case no injustice would be done by this order. The goods were purchased by the present petitioners only on 27th June, 1986 after they were aware of the judgment of this Court in Raj Prakashs case (supra) as well as Indo-Afghan Chambers of Commerces case (supra). No question of any restitution of rights arises." * 13. There was no ambiguity in the order dated April 18, 1985 (Rajnikants case). Assuming it needed clarification, the same was done by this Court on March 5, 1986 in Raj Prakashs case. The respondent entered into contract for the import of the item on May 5, 1986 much after the judgment in Raj P rakash case. We are of the view that the Tribunal fell into grave error in accepting the plea of bona fide raised by the respondent and setting aside the order of Collector. The opinions expressed by the officers in interdepartmental communications is of no consequence. In the face of clear and unambiguous judgments of this Court it was not open for the department authorities to entertain a contrary opinion. 14 It is no doubt correct that the facts in B Vijay Kumars case relied upon by the Tribunal are somewhat similar to the facts in this case. This Court decided Vijay Kumars case on the special facts and circumstances of the said case. This Court while deciding Vijay Kumars case observed as under: "We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in t e orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine..........We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent." * 15. Even otherwise, in view of the judgments of this Court discussed above, we hold that B Vijay Kumars case does not lay-down correct law. 16.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There is no ambiguity in the order which makes it clear that the additional licence holders would not be entitled to import the items which are specifically banned under the import policy 1985-88. No other interpretation is possible. Some of the Departmental officers were not justified in taking the view that the order permitted the import of canalised itemsThere was no ambiguity in the order dated April 18, 1985 (Rajnikants case). Assuming it needed clarification, the same was done by this Court on March 5, 1986 in Raj Prakashs case. The respondent entered into contract for the import of the item on May 5, 1986 much after the judgment in Raj P rakash case. We are of the view that the Tribunal fell into grave error in accepting the plea of bona fide raised by the respondent and setting aside the order of Collector. The opinions expressed by the officers in interdepartmental communications is of no consequence. In the face of clear and unambiguous judgments of this Court it was not open for the department authorities to entertain a contrary opinionIt is no doubt correct that the facts in B Vijay Kumars case relied upon by the Tribunal are somewhat similar to the facts in this case. This Court decided Vijay Kumars case on the special facts and circumstances of the said case. This Court while deciding Vijay Kumars case observed as under:"We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in t e orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine..........We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent." *Even otherwise, in view of the judgments of this Court discussed above, we hold that B Vijay Kumars case does not lay-down correct law.