SACHAR, J ( 1 ) THIS judgment will dispose of both the writpetitions. Apart from some details on facts on their own mostof the main points are common. I shall take the facts from CW 4037 of 1982 as counsel for the petitioner argued fromthis petition. ( 2 ) THIS petition challenges the impugned order dated20-12-1982 passed by the Collector, Customs and Central Excise, Ahmedabad under Section lll (d) of the Customs Act. By the said order he directed the confiscation of 3002. 557 MTof Refined Industrial Coconut oil imported by the petitioner,he gave, however, an option to the petititoner to redeem thegoods on payment of a fine of Rs. two crores in terms ofsection 125 of the Customs Act. ( 3 ) SECTION 11 of the Customs Act, 1962 empowers thecentral Government that it may by notification, in the officialgazette prohibit either absolutely or subject to such conditionsas may be specified the import or export of goods of any spedfied description. Section 111 (d) of the Customs Act says thatany goods which are imported contrary to any prohibition imposed by or under this Act or any other law for the limebeing in force shall be liable to contiscation. Section 112 provides penalty for importation of goods which are liable to confiscation and says that such a person shall be liable also to apenalty not exceeding five times the value of goods or Rs. 1000/whichever is greater. Section 125 permits the officer orderingconfiscation to give to the owner of goods an option to payin lieu of confiscation such fine as the said officer things fit. Section 12 (1) of the Customs Act lays down that duties ofcustoms shall be levied at such rates as may be specified under the Customs Tariff Act. Section 2 of the Customs Tariff Actlays down the rates at which duties of customs shall be leviedunder the Customs Act. ( 4 ) SERIAL No. 15. 07 in Schedule I of the Customs Tariff Act,1975 reads as under :-Heading Sub-heading No. Rate o duty Durationno. A description of Standard-Preferen- when ratesarticle tial of dutyareas areproductive15. 07 Fixed vegetable oilsfluid, or solid,crude refined orourified (1) Not elsewherespecified 200% 190% (2) Soyabean oil 200% 190% (3) Palm oil 200% 200%184it is a common case that the petitioner is liable to pay dutyon the import of coconut oil under the above. A description of Standard-Preferen- when ratesarticle tial of dutyareas areproductive15. 07 Fixed vegetable oilsfluid, or solid,crude refined orourified (1) Not elsewherespecified 200% 190% (2) Soyabean oil 200% 190% (3) Palm oil 200% 200%184it is a common case that the petitioner is liable to pay dutyon the import of coconut oil under the above. entry subject toany notification that maybe issued under Section 25 of thecustoms Act. ( 5 ) SECTION 3 (1) of the Import and Export Control Act,1947 as amended empowers the Central Government that it mayby order published in the official gazette make provisions forprohibiting restricting or otherwise controlling the import orexport of goods of any specified description. Sub-section (2)of Section 3 further provides that all goods to which arty orderunder Sub-section (1) applies shall be deemed to be goods ofwhich import or export has been prohibited under Section 11 oethe Customs Act and all the provisions of that Act shall haveeffect accordingly, ( 6 ) INEXERCISE of the powers conferred by Section 3 of theimport Act the Central Government has issued an order ,calledthe Import Control Order 1955. Clause 3 lays down that noperson shall import any goods of the description specified inschedule I and except under and in accordance with a licencegranted by the Central Government. Schedule I makes anote that each heading number corresponds to the respectivechapter and heading number of the first schedule to the Customstariff Act. Entry 15. 07 reads as under :-Fixed vegetable oils, fluid, or solid, cruderefined or purifiedit is common case that import of coconut oil,. whetheredible or industrial would be governed by this entry. Thus theimport of items mentioned in Schedule I is prohibited except inaccordance with a licence or an Open General Licence issued bythe Central Government. ( 7 ) THE Government of India issued an Import Policy 1980-8 1/04/1980 to March, 1981 ). The impugned licences wereissued during this period (through revalidated subsequently ). ( 8 ) APPENDIX 9 para 5 (April 19/03/1981) providesthat in the case of the various items mentioned therein importwill be made only by the State Trading Corporation of India onthe basis of foreign exchange released by the Government in itsfavour. The items mentioned therein are 1. Cocnut oil. 2. Copra. 3. Groundnut oil/seeds. 4. Palm oil (all types including palm olein ). ,5. Rapeseed oil/secds. 6. Saffower oil-seeds7. Soyabean oil/seeds and8. Sunflower oil/secds. The items mentioned therein are 1. Cocnut oil. 2. Copra. 3. Groundnut oil/seeds. 4. Palm oil (all types including palm olein ). ,5. Rapeseed oil/secds. 6. Saffower oil-seeds7. Soyabean oil/seeds and8. Sunflower oil/secds. Appendix 10 to the said policy enumerates the itemsallowed to be imported by the actual users (industrial) under theopen General Licence (OGL) and the conditions mentionedtherein. ( 10 ) ITEM No. 1 reads : Raw material, components orconsumables (non-iron and steel items) other than thos$e included in the Appendix 9. ( 11 ) THE petitioner holds a letter of authority from an exporthouse. The export housed are entitled to additional licencesin terms as mentioned in Para 177 of the Import Policy. Interms of para 177 (5) of the Import Policy, the additional licenceswill also be valid for import of raw material components andspares (excluding those covered by Appendix 5) which have beenplaced on Open General Licence for actual users (industrial ). ( 12 ) THE petitioners M/s. Jain Exports (P) Ltd. , imported aconsignment of 3007. 557 MTof refined industrial coconut oil,its CIF value was shown af 1,63,67. 050. The goods arrivedat Kandla port in September, 1982 from Colombo. The petitioner filed the various documents for clearance of this consignment claimmg it to be and which is admitted to be refinedindustrial coconut oil. ( 13 ) THE petitioners claim that the goods imported by themarc not edible coconut oil which alone falls within Appendix 9,para 5, but that they fall within Appendix 10, Item 1 and beingopen General Licence have been validly imported. ( 14 ). The Collector, however, lias taken the view that theitem coconut oil whetiher edible or industrial is covered withinappendix 9, Para 5 (1) of the Import Policy for 1980-81 andthus being a canalised item of S. T. C. coald not at al3 be imported by a private parly like the petitioner. ( 15 ) HENCE the above impugned order of confiscation. Thepetitioners being aggrieved have come up by way of writ petitionimpugning the said order. ( 16 ) IT is not disputed by Mr. Sen and Mr. ( 15 ) HENCE the above impugned order of confiscation. Thepetitioners being aggrieved have come up by way of writ petitionimpugning the said order. ( 16 ) IT is not disputed by Mr. Sen and Mr. Rana, the learnedcounsel for the petitioner that in terms of Appendix 9, Para5, STC is the canalised agents for the import of coconut oilbut it is maintained that this entry of coconut oil should berestricted to only that variety of coconut oil which isedible and as admittedly the petitioner had imported non-edibleor industrial coconut oil the same was not prohibited and wouldbe permissible to import it under OGL in terms of Appendix10 Item No. 1 of Import Policy (April 19/03/1981) asbeing a raw material which is used by the soap manufacturers. ( 17 ) THE matter has been argued from various facts and Ishall deal with each of the points arising therein. 1. Does the entry of coconut oil in Appendix 9 para5 of Import Policy 1980-81 cover only the ediblevariety of coconut oil or does it also include bothedible and non-edible or industrial variety ofcoconut oil 2. Even if the word coconut oil in the above entryin the 1980-81 policy is to be taken to cover onlythe edible variety of coconut oil, could the samehave still been validly imported in July-September,1982 when admittedly Import Policies for 1981-82and 1982-83 both edible and non-edible variety ofcoconut oil were canalised items and could onlybe imported by the STC. 3. Was the order of Collector passed under extraneousinfluence and at the instigation of an. outside authority ? 4. Was the Collector bound to decide in accordancewith the order of the Central Government dated 31/03/1981, if so can the petitioner insist onwrit of mandamus being issued compelling thecollector to apply the law laid down by the Centralgovernment even if this Court holds a view contrary to the view taken by the Central Government. In this connection would not the objection of alternative remedy be a total bar to the seeking of thisremedy of mandamus or Certiorari ? 5. IS the petition not maintainable on the ground ofalternative remedy and lack of territorial jurisdiction ? ( 18 ) NOW coconut oil" does not as such find mention. Inthe Schedule to the Customs Tariff Act or in Schedule to theimport Control Order. But it is not disputed that coconutoil is covered by Entry 15. 5. IS the petition not maintainable on the ground ofalternative remedy and lack of territorial jurisdiction ? ( 18 ) NOW coconut oil" does not as such find mention. Inthe Schedule to the Customs Tariff Act or in Schedule to theimport Control Order. But it is not disputed that coconutoil is covered by Entry 15. 07 of Schedule Customs Tariff Act andschedule to the Import control Order. In Import. Policy 198081. Appendix 9para 5 the items which can be imported by STCalone, amongst other oils coconut oil as such is mentioned. Thereis, however, no suggestion or qualification whatsoever whetherthe item coconut oil excludes any variety of coconut oil i. e. whether edible or industrial. Looking at the entry by itselfit is not understandable on what basis the argument is raisedthat coconut oil in. import policy must be understood as to berestricted only to the edible variety. As the word coconut oil is not defined it is,eyident that this must be understood and moreespecially in taxing statutes where revenue is derived, not in anytechnical sense but as understood in common parlance, beinga word of every day use it must be construed in its popularsense meaning "that sense which people conversant with thesubject matter with which the statute is dealing would attributeto it. ( 19 ). THE rationale in giving the ordinarily understood meaning to the words to be found in tax statute was expressed veryaptly in King V. Planters Nut and Chocolate Company Limited,1951 C. L. R. 122 (1), while dealing with the meaning of theterm vegetable in an Excise Act, the Court said :"now the statute affects nearly everyone, the produceror manufarturer, the importer, wholesaler andretailer, and finally, the consumer who, in the lasaniysis, pays the tax. Parliament would not suppose in an Act of this character that manufacturers,producers, importers, consumers and others whowould be affected by the Act, would be botanists. Botanically, oranges and lemons are barriers, butotherwise no one would consider them as such". These observations have the concurrence of the Supreme Court (Ramavatar Budhaiprasad etc. v. Assistant Sales Tax Officer,akola and another, 1961 SC 1325 (2) and Dunlop India Ltd. Madras Rubber Factory Ltd. v. Union of India and others, 1977sc (597) (3 ). ( 20 ) REFERENCE may profitably be made to The commissioner of Sales Tax, Madhya Pradesh, Indore v. M/s. Jaswantsingh Charan Singh,1967. SC 1454 (4 ). v. Assistant Sales Tax Officer,akola and another, 1961 SC 1325 (2) and Dunlop India Ltd. Madras Rubber Factory Ltd. v. Union of India and others, 1977sc (597) (3 ). ( 20 ) REFERENCE may profitably be made to The commissioner of Sales Tax, Madhya Pradesh, Indore v. M/s. Jaswantsingh Charan Singh,1967. SC 1454 (4 ). In that case the question arose whether the charcoal could be included under theentry coal or should it be included under the residual article. The State had urged that coal and charcoal are different products, coal being mineral and the charcoal being prepared bywood and other articles by human agency. The Supreme Courtthough accepting that coal is technically understood as amineral while charcoal is manufactured by human agency byproducts like wood and other things but it cautioned that ininterpreting item in a statue like Sales Tax Act resort shouldbe had not to the scientific or technical meaning of such termsbut to their popular meaning or the meaning attached to it bythose dealing in them. It then went on to observe :"viewed from that angle both a merchant dealing incoal and a consumer wanting to purchase it wouldregard coal not in Its goeological sense but in thesense as ordinarily understood and would includecharcoal in the term coal . It is only when thequestion of the kind or variety of coal would arisethat a distinction would be made between coal andcharcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense bespoken as cole ( 21 ) DUNLOP India Ltd. v. Union of India and others (AJ. R. 1977 SC 597) to which reference was made by counsel for. thepetitioner is of no avail. There the goods imported was V. P. Latex by the appellant who were manufacturer of automotivetyres. The Central Government held that the V. P. Latex wassynthetic resin and was to be classified accordingly, while thepetitioner s case was that it was liable to duty under item No. 39under rubber raw. The Supreme Court on a reference to thevarious relevant books and other publications came to the conclusion that no one can come to the conclusion that latex wouldnot come under rubber raw simply because the authorities thoseto treat it as resin because of the end result which considerationwas irrelevant. ( 22 ) REFERENCE by the petitioner to M/s. Healthways Dairyproducts Co. ( 22 ) REFERENCE by the petitioner to M/s. Healthways Dairyproducts Co. v. The Union of India, A. T. R. 1976 SC 2221 (5),is equally of no avail. ( 23 ) THE assessee for some time paid the excise duty both oncondensed milk as well as condensed skimmed milk manufactured by it. Later on it objected to the payment of duty on thecondensed skimmed milk on the ground that this was coveredwithin exempition notification of milk preparation. The Highcourt disagreed with the assessee and dismissed the writ petition,the Supreme Court allowed the appeal holding that condensedskimmed milk and conidensed milk are two different items ofmilk preparation, that in common parlance the milk meant fullcream milk and skimmed ,milk means without -fat that is whenfat is extracted from the milk. The skimmed milk which canbe called a form of preparationi of milk is known as separate andcan be used for preparation if other milk products. ( 24 ) THE Supreme Court, therefore, held that the Centralgovernment when it mentioned condensed miik only meant toexclude from exemption condensed milk and full cream milkand not the conidensed skimmed milk. Therefore the levy ofexcise duty on condensed skimmed milk was not Justifiable. ( 25 ) THE analogy has no applicability. Ordinarily when aperson goes to purchase milk, it is always understood as referringto full cream milk. Though in loose sense condensed milk andcondensed skimmed milk may appear to be covered under condensed milk, yet no one in trade nor any consumer is. to equatethe both as the same. Use in our country of milk and condensedskimmed milk is so different, that to lump them under the sameheading condensed milk is to fly in the face of the understandingof the ordinary person. That the condensed skimmed- milk isused only on health ground or for special taste and must be askfor by a purchaser specially-milk would exclude skimmed milk. That case is distinguishable. The test being to find the meaningas ordinarily understood, I am not able to appreciate by whatlogic is the word coconut oil mentioned in the import policybeing sought to be restricted to merely edible variety of coconutoil. That case is distinguishable. The test being to find the meaningas ordinarily understood, I am not able to appreciate by whatlogic is the word coconut oil mentioned in the import policybeing sought to be restricted to merely edible variety of coconutoil. ( 26 ) REFERENCE to H. R. Syiem v. P. S. Luua (LXXII 1969bombay Law Reporter 534) (6) is a case in which it was heldthat black Insulating Tapes which are included in electric insulations in column 2 of entry No. 38 cannot be held to be adhesive tape in column 6 of the same entry by the mere fact thatthey have adhesive capacity notwithstanding that the use of thesaid tape was for electrical insulation. It would be seen that theuse of the electric insulation tape was taken to be the determiningfactor for giving a meaning to the word. In State of U. P. andothers v. M/s. Indian Hume Pipe Co. Ltd. (A. I. R. 1977 SC1132) (7) the question raised was whether "hume pipes" amountto sanitary fittings. The Supreme Court held that sanitary fittingswould only be such as pipes or materials as are used in lavatories,urinals, or bath rooms of private houses or public buildings. Ithowever, accepted that even where hume pipe is used for carryingthe excreated material from the commode to the septic tank maybe treated as sanitary fittings. It is important to note thatthe mere fact that it was "hume pipe" was not considered suffixcient to exclude it from the sanitary fittings; rather it was heldthat the hume pipe can be included in sanitary fittings if it wasso put to particular use. On the parity of same reasoning thecoconut oil as such would include both edible and non-edibleindustrial coconut oil because the same is not qualified in Importpolicy by any particular use to which it is put. ( 27 ). It may be noted that the production of coconut oil for83-84 is about 1. 69 lakhs tons only. The requirement in thecountry of vanaspati in terms of oil has been assessed by thegovernment about a million ton only. The requirement is metfrom the indigenous and import of the main traditional edibleoils like ground nuts mustards, rapeseed which are the major oneand also from the minor oils like sunflower and saw-flower. 69 lakhs tons only. The requirement in thecountry of vanaspati in terms of oil has been assessed by thegovernment about a million ton only. The requirement is metfrom the indigenous and import of the main traditional edibleoils like ground nuts mustards, rapeseed which are the major oneand also from the minor oils like sunflower and saw-flower. Ithas been calculated that 64 per cent of the total coconut production in the country does not come to the milling as copra indeedthey meet the fat and oil needs of the people indirectly as it formspart and parcel of those states where this crop is grown. It iswell known that the coconut oil is. not at all used as an edibleoil in a very large part of our country. Almost all the part ofindia up to Vindhyas do not use coconut oil as edible medrum. Even in rest of the country though it is in use extensively in homepart its use in most of the other part is small. So ordinarily if aperson was to go to the market and ask for coconut oil, thenormal question he would be asked will be whether he needs itas hair oil or Shampoo. No one normally will understand coconut oil to mean only edible variety because such is not the normal major use. persoa would have to specifically clarify thatby asking for coconut oil he is asking for edible variety in orderto make his intention clear. Thus by itself and in ordinary parlance coconut oil in the import policy would be understood toinclude both edible variety and industrial variety of coconut oil. If only one variety of coconu. t oil was meant to be covered, itwould be more consistent to hold that it is industrial variety considering the overwhelming use of coconut oil for non-edible purpose. But an entry could never be restricted only to edible variety of coconut oil. In the trade circles coconut oil when usedalso is meant to include both edible and industrial variety. Thuspara O. 2 of the Indian Standard Specifications for coconut oil (Second Revision) shows the use of coconut oil both for edibleand non-edible purpose, like in the manufacture of cosmetics,toilets. "the requirements for various grades are suitable forthe foregoing purposes. ^ Para I. I prescribes the standard whichis the requirement for test of coconut oil used for edible andindustrial purposes. Thuspara O. 2 of the Indian Standard Specifications for coconut oil (Second Revision) shows the use of coconut oil both for edibleand non-edible purpose, like in the manufacture of cosmetics,toilets. "the requirements for various grades are suitable forthe foregoing purposes. ^ Para I. I prescribes the standard whichis the requirement for test of coconut oil used for edible andindustrial purposes. Types and grades are mentioned and showsrefined grade and raw grade IA and IB are suitable for directedible consumption while raw grade 2 and other two grades aresuitable for industrial uses and not for direct edible consumption. Thus as per specification "coconut oil" standing by itself wouldinclude both edible and industrial variety of coconut oil. Thespecifications by Indian Standard Institution has been acceptedas furrtishing very strong and uncontrovertible support as to howan article is known to the consumers and commercial community (See Union Of India and another Vs. Delhi Cloth and Generalmills Co. Ltd. 1963 SC 791 (Para 10) (8 ). ( 28 ) MR. Sen s objection that the reference to specification ofstandard Institution is not permissible as no warning was givenby the Collector that he may refer to it and thus principles ofnatural justice have been violated is an argument of despair. Surelyno notice is necessary for making any reference to the standardpublication of undisputed authenticity. Here is not some material privately collected and used behind the back of the petitioner. This attempt at excluding the above definition must, therefore, fail. It may be noted that groundnut is the primary oilseed crop in India accourting for 70 per cent of total oil seedproduction. Vanaspati industry also produces natural hardened oilwhich is now used to meet the requirements of fast expanding nonpower soap industry. Oil for edible and inedible purposes isextracted from sunflower oil. Soyabean oil for edible purposeswas completely unknown in the country prior to 1960. Evennow it contributes to less than 2 per cent domestic edible oil. All this shows that coconut oil whether of edible or industrialvariety is in common parlance always referred to and describedas "cococnut oil". In that context it is not permissible to carveout an exception by seeking to exclude die industrial variety fromthe word "coconut oil" used in the import policy. The justification pleaded by the petitioner for giving the narrow meaning isby seeking to rely on correspondence exchanged between thepetitioner and the State Trading Corporation. In that context it is not permissible to carveout an exception by seeking to exclude die industrial variety fromthe word "coconut oil" used in the import policy. The justification pleaded by the petitioner for giving the narrow meaning isby seeking to rely on correspondence exchanged between thepetitioner and the State Trading Corporation. These are thetwo letters dated 25/10/1980 addressed by the petitionerto the STC and the second a reply dated 30/10/1980addressed by the Chief Marketing Manager of the STC to thepetitioner. The same were not placed on record earlier. Wehad asked these documenits during the hearing and I am placingthem on record by marking x" and y" respectively. The communication by the petitioner is a query made from the STC thatthe petitioners are in need of about 100 MT of coconut oil forthe manufacture of soap in their factory and that raw materialrequired is industrial oil and requesting for allocating 100 MTof industtrial coconut oil. The State Trading Corporation repliedthat it was not importing industrial coconut oil for manufactureof soaps, and that it was importing edible oils for Vanaspatiindustry. It also added the sentence which in fact is the mainplank of the petitioners defence, that industrial coconut oil isnot under our preview and is not canalised with us. ( 29 ) FROM this it is argued by Mr. Sen that the STC is a ferybig trader and as it has stated that the industrial coconut oil wasnot camlised with it, it must be accepted that the word "coconutoil" in 1980-81 Import Policy was restricted only to the ediblevariety. I do not agree. No importance can be attached to asuggestion in this letter that industrial coconut oil is not canalised with STC for more than one weighty reason. The authorityof Chief Marketing Manager to speak for STC in an authoritativemanner is not shown. Moreover, STC is not the authority at allfor giving any interpretation about what items are canalised. Thus in. Chapter 20 of Import Policy 1980-81 dealing with classificaition and interpretation of the policy Para 202 specificallyprovides that in all other matters relating to actual users enquiries emanating from other persons i. e. Export Houses, sellingagents, traders etc. , as well as interpretation of the policy proper and the procedure, the person concerned may address thechief Controller of Imports and Exports for necessary advice. , as well as interpretation of the policy proper and the procedure, the person concerned may address thechief Controller of Imports and Exports for necessary advice. Any interpretation of the Import Policy given ill any other manner will not be binding on him or in law. (emphasis supplied ). Para 199 (3also says that in respect of itemsother than ironand steel an Actual user i. e. any person desirous of importingan item subject to Actual User condition may seek clarificationfrom the DGTD (Import and Export Policy Cell) about : THE scope of any item in Appendices 1. 2, 9 and 10 ANY doubt whether a particular item required byhim is raw material. . . . . . banned for import underappendix 10. ( 30 ) NEW Appendix 9 of policy covers items which are canalised ard if the petitioners who are to import items holding aletter of authority on behalf of the Export House it is evidentthat the query should have been to the Chief Controller of 1mports and Exports. Reference to an unauthorised agency likes. T. C. could not furnish any justification to the petitioner toplead that he was misled into thinking that only variety of ediblecoconut oil was canalised. A specific authority having beennamed, in case of any doubt reference must be made to thatvery authority. It is also interesting to note the circumstances inwhich this letter from the STC was received. It would appearthat one M/s. Jain Shudh Vanaspati, another concern closelyconnected to the peititioner imported a consignment of industrialacoconut oil valued at over 2 crores. As a matter of fact the petitioner had letter of authority in favour of M/s. Jain Shudh Vanaspati to import it. It claimed the right to import it under OGL. The Collector was examining the matter when this letter of31-10-1980 was produced. It will thus he seen that it was notas if the petitioner were importing the industrial coconut oil onlyon the strength of letter from the S. T. C. This letter was ratherused as evidence after the import had been made. In any casethe S. T. C. is not competent authority and opinion given by itcannot be used as a total plank on which to found the argumentabout the validity of the import. In any casethe S. T. C. is not competent authority and opinion given by itcannot be used as a total plank on which to found the argumentabout the validity of the import. ( 31 ) ANOTHER, reason mentioned by the Central Government sorder dated 31-3-1981 holding that coconut oil in Appendix 9para 5 should be read only as referring to the edible variety, isby referring to Entry Palm Oil in Appendix 9 para 5 where itis described that all type", while no such specification is givenwith regard to the coconut oil, the argument being that this wouldindicate that it is the edible variety which alone was canalised. Inmy view the Central Government by invoking this reason hasclearly mis-directed itself. The entry in Appendix 9 describespalm oil (of. types including Palm oliene and Palm Stearin) because there are various kinds of Palm oils some of which arelikely to be mis-understood asnot being included in the generalitem. Palm oil e. g. Palm oliene is product resulting from breaking up the palm oil. Palm oil is refined. The liquid operationafter refining is palm oliene, while the solid part is palm stearin. In that view it was evidently necessary to mention that the palmoliene will also be included in Entry Palm Oil. That palm olieneand palm stearin are different commodities has been up-held bya special board of Central Customs dated 28-5-82 wherein itnoted that the Central Government had also held that palmoliene had to be considered different from palm oil and it wasfor this reason that it was found necessary- to qualify the entryof palm oil by specifying of all types including palm oliene. Thesame situation does not apply to coconut oil because it is thesame name, only the purpose is edible or industrial. The goodsbeing known as coconut oil only. ( 32 ) ANOTHER reason given by the board in as order of23-1-1981 for purporting to hold that coconut oil may be restricted to the industrial variety is by suggesting that a few yearsback the prime quality of stainless steel was canalised whiledefective stainless steel was outside the canalisation. I do notsee relevance. Rather this illustration will show that where thecontroller of Imports wants to specify a particular quality ofthe same goods to be kept out of canalisation it is so stated. I do notsee relevance. Rather this illustration will show that where thecontroller of Imports wants to specify a particular quality ofthe same goods to be kept out of canalisation it is so stated. Asthe Entry stainless steel would include prime as well as defectivequality, it was necessary to mention prime quality as the intention was only to canalise the prime quality. On the same reasoning, therefore, if in the present case only edible variety ofcoconut oil was to be canalised the entry should have read coconutoil (edible variety ). In the absence of any qualification theentry of coconut oil is only consistent with the fact that boththe varietias that is edible and industrial are covered with it. Itmay, however, be mentioned that for the purpose of paying customs duty on imports a bench of this court saw no justificationto restrict the meaning of entry of stainless steel to cover onlyof prime quality of stainless steel, the bench rather held thatboth the prime as well as defective stainless steel were coveredunder the Entry of "stainless steel" (See Super Traders and another Vs. Union of India and others 1983 ELT 258) (9 ). ( 33 ) THE petitioner himself has not made any distinction between an entry of coconut oil (refined) as being restricted onlyto edible variety. The Government of India had issued a notification dated 1/11/1976 under Section 25 of the Customs Act exempting goods when imported from Lanka andothers from payment of duty in excess of 40 per cent in respectof coconut oil (refined ). It is common case that the petitionerhas paid concessional customs duty in terms of 1/11/1976 notification. The notification used the word refined coconut. oil". Not having specified that it was for non-edible or edibleevarietv, the petitioner took the advantage by treatinc it asconcerniing both the varieties and. therefore, paid concessionalcustom duty. But surprisingly when the same entry is foundin Appendix 9 para 5 it is sought to be urged that the use ofthe word coconut oil must always be restricted to the ediblevariety. Such a strange and involved logic is difficult to appreciate. If this very entry of coconut oil is accepted to includeboth edible and industrial variety it is not understandable bywhat process of reasoning the same entry to be found in theimport Policy 1980-81 is sought to be restricted to only theedible variety. The argument of the petitioner has no force. Such a strange and involved logic is difficult to appreciate. If this very entry of coconut oil is accepted to includeboth edible and industrial variety it is not understandable bywhat process of reasoning the same entry to be found in theimport Policy 1980-81 is sought to be restricted to only theedible variety. The argument of the petitioner has no force. Another argument in support of this contention was by relyingon Import Policy for 1981-82, 1982-83, whereby the entry inappendix 9 para 5 was to the effect In the case of the followingitems, whether edible or non-edible, import will be made onlyby the State Trading Corporation. . . . . . . . . (i) coconut oil . Thesuggestion of Mr. Sen and Mr. Rana is that because the wordswhether edible or non-edible are not to be found in the earlierpolicy of 1980-81 it necessarily means that the words coconutoil used in 1980-81 policy was restricted only to edible variety. I cannot agree. It is equally possible to say that as edible hasbeen specifically mentioned in 1981-82 policy, the earlier Entryof 1980-81, was restricted to non-edible variety only. So thisargument of seeking to exclude edible variety from 1980-81can be equally utilised by the respondents to urge to the contrary. I cannot accept such an exclusion of industrial variety,when there is nothing in support of such exclusion. ( 34 ) THE reference to the Government of India s import policywould rather go to show that the understanding of the Government of India was that reference to any "oil" without specifyingwhether it is for edible or industrial purposes would inevitablyinclude both the said purposes. That is why whenever it wantedto specify with reference to any oil in the import policy thatit is to be limited to industrial or edible purposes it so statedspecifically. In the absence of any specification the Governmentof India s import policy always meant to include any oil as including both for edible and for industrial purposes. Thus in the1978-79 import policy Appendix 8 included list of items importof which was canalised through public sectoragencies. Thusitem 45 namely copra and item 53 namely Soyabean oil_for usein Vanaspati industry and other industrial purposes were included. Item No. 51 was palm oil excluding refined bleach or deordarised. Item 43 refers to coconut oil without any specification. Appendix 10 referred to import of various items under the Opengeneral Licence. Thusitem 45 namely copra and item 53 namely Soyabean oil_for usein Vanaspati industry and other industrial purposes were included. Item No. 51 was palm oil excluding refined bleach or deordarised. Item 43 refers to coconut oil without any specification. Appendix 10 referred to import of various items under the Opengeneral Licence. Item 8 was headed as -edible oils andamongst others mentioned copra, soyabean oil and refined anddeodorised palm oil; coconut was not mentioned therein. Thusin 1978-79 policy "coconut oil" whether for edible or for industrial purposes could only have been imported by the STC. Itwas not an item included under the OGL in Appendix 10. Alsothough copra and soyabean oil were both mentioned in Appendices 8 and 10, but for industrial purposes the said oils werecanalised through the STC; it was only the edible variety ofcopra or the soyabean oils that could be imported under theogl. Coconut, even of industrial variety was importable onlyunder Appendix 8, and by STC only. These illustrations makeit clear that whenever the Government of India wanted to qualify an oil as an edible one it so clarified it as such. In 1979-80import policy Appendix 8 containing the list of items importof which was canalised through public sector agencies includedat item 57 heading "oils". Amongst them 8 oils are mentionedincluding the coconut oil. copra, soyabean. Item 57 does nothave the Qualification of edible or industrial nurposes. Thus in1979-80 all oils including coconut oil whether of industrial oredible variety were canalised items through STC. Appendix 10which dealt with import of items under OGL had no entry ofoils at all. Entry No. 1 Appendix 10 was broadly similar aswas to be found in the import policy of 1980-81 namely rawmaterials, components other than those included in the Appendices 3, 5, 8 and 9. It is clean thus that under 1979-80 policycoconut oil even for industrial purposes could not have beenimported under Appendix 10 because the history of coconut oilshows that it was a canalised item both for edible as well asindustrial purposes right from 1978-79 policy and it also figuresas such amongst the canalised items in 1979-80. Soyabean oiland copra which in 1978-79 had been divided into industrialand edible purposes by being mentioned specifically in Appendices 8 and 10 respectively had ceased to be so included separately and were now included amongst the canalised items inappendix 8. Soyabean oiland copra which in 1978-79 had been divided into industrialand edible purposes by being mentioned specifically in Appendices 8 and 10 respectively had ceased to be so included separately and were now included amongst the canalised items inappendix 8. It is significant to note that deodorised palm oilis excluded from Entry 51 in Appendix 8 (1978-79) of industrial purpose evidently because deodorised palm oil is for ediblepurposes and included in Item 8 Appendix 10 (1978-79 ). Similarly for 1978-79 entry No. 8 Clause 3 is of soyabean oil seedsand edible variety is under OGL (Appendix 10) while for industrial purposes soyabean oil is also included at Entry 53 inappendix 8 as being a canalised agency. A comparison ofappendices 8 and 9 (1978-79) will thus show that ous whichare edible are covered under the Open General Licence in Appendix 10 while the oils for industrial purposes are included inappendix 8 being canalised items. The inevitable result isthat whereas in 1978-79 policy oils for industrial purposes werecanalised in Appendix 8 and for edible purposes inappendix 10 under OGL. This distinction between industrial andedible variety of oils which existed in 1978-79 policy was doneaway with in 1979-80 policy. It Is important to note that theword edible oil seeds which was mentioned in Appendix 10 in1978-79 policy is not to be found in 1979-80; similarly 1980-81policy has also the heading of oils. The delibrate omission ofthe word edible clearly shows that the Government of India spolicy was to inelude both edible and non-ediblee variety of oilsin 1979-80 and 80-81 policies as amongst the canalised items. In. that view there could be no scope for argument that in 198081 policy coconut oil which continues to be included amongstthe canalised items and without any qualification o edible orindustrial variety right from 1978-79 policy should suddenly andwithout any reason be taken to have been split up and that onlyedible variety should be held to be included in Appendix 9, whenthere is no qualification of the variety of coconut oil in the policy. The raw-materials which can be imported are those which arenot included in Appendices 8 and 9. The coconut oil hasalways been so included amongst canalised items and, therefore,it was an item which would not be permissible to be importedunder the Open General Licence under Appendix 10 of 1980-81policy. The raw-materials which can be imported are those which arenot included in Appendices 8 and 9. The coconut oil hasalways been so included amongst canalised items and, therefore,it was an item which would not be permissible to be importedunder the Open General Licence under Appendix 10 of 1980-81policy. Though this position was clear nevertheless disputes seems to have been raised by the importers by alleging that in1980-81 the edible variety of coconut oil was not canalised andthat is why it was considered necessary to clarify the same insubsequent policies of 1981-82, 1982-83 by qualifying Appendix 9 in para 5 under the heading of oils that it included whether edible or non-edible. That this clarification was not without any background is clear from the fact that during 1980-81large imports of non-edible oil had been made by the privateparties. ( 35 ) IN the case of another concern the Collector had rejectedthe plea of the petitioner that coconut oil of industrial varietywas outside the purview of canalisation and has imposed apenalty of 25 lakhs. The Central Board had, however, taken adifferent view by its order of 23/01/1981 and had setaside the order and held that coconut oil of industrial variety wasnot canalised through STC. The Central Government has notedin its order dated 31/03/1981 that the Joint Chief Controller of Imports and Exports in the office of Chief Controllerof Imports and Exports in his letter of 28/02/1981addressed to the Director of Customs had pointed out that theinformation given by the STC that industrial crude coconut oilwas not canalised was not correct. Thus as a doubt had beencast and more so in view of the decision of the Central Boarddated 23/01/1981, the Government naturally consideredit proper to remove any doubt considered it proper to clarifythat coconut oil always meant to include both edible andindustrial variety and that is why it out of abandant caution clarifiedthe same in the immediately next import policy of 1981-82. Thus there was a pressing need to clarify the position. It isnot correct, as the counsel for the petitioner sought to urge thatnon-edible type of coconut oil was being added in the canalised item for the first time in 1980-81 import policy. On thecontrary the same was always included and only because ofthe doubt cast this further clarification was though necessaryto be introduced by the Government. It isnot correct, as the counsel for the petitioner sought to urge thatnon-edible type of coconut oil was being added in the canalised item for the first time in 1980-81 import policy. On thecontrary the same was always included and only because ofthe doubt cast this further clarification was though necessaryto be introduced by the Government. ( 36 ) THAT even amendment made in the Sea Customs Actwas held to by way of abandant caution even though the intention to permit prosecution under that Customs Act wasalways to be found under the unamended law (see AIR 1965sc 481 ). This is a common practice as observed in Chandrakant Saha and others v. Union of India and others (A. I. R. 1979sc 314) (10), Arice huller challenged the Rice Milling Industry (Regulations) Act on the ground that the definition ofmilling rice in Section 3 does not include rice hullers. Theact had been amended to introduce Section 3 (a) which statedthat the provisions of this Act shall also apply to rice hullers. The petitioners had argued that the introduction of Section3 (a) shows that definition under Section 3 (d) and (g) did notinclude rice hullers. The Supreme Court repelling this argument observed : thus on a true interpretation of Section 3 (d) clauses (i) and (ii) and (gg) there can be absolutely nodoubt that the Section includes tile operation carried out by the rice hullers. In view of this interpretation it was not necessary for the Legislatureto have added Section 3a but this was done inorder to put the matter beyond doubt or controversy. ( 37 ) AS a result of above I had no manner of doubt thatthe Collector took the correct view in holding that coconut oilwhether of Industrial or edible variety was an item fallingunder Appendix 9 para 5 (1) of the Import Policy AM 1980-81. As the items in Appendix 9 could only be imported by thestc the same could not be treated as an item covered byappendix 10 Open General Licence. The import, by thepetitioner, was rightly held to be prohibited in terms of theimport policy and in violation of the Import Control Act andthe Customs Act and the same would evidently invite thepenalty of confiscation. Point No. 1 is answered against thepetitioners. ( 38 ) POINT No. 2mr. The import, by thepetitioner, was rightly held to be prohibited in terms of theimport policy and in violation of the Import Control Act andthe Customs Act and the same would evidently invite thepenalty of confiscation. Point No. 1 is answered against thepetitioners. ( 38 ) POINT No. 2mr. Iyer, the learned counsel for the Union of India hadargued in the alternative, that even if it is held that in 1980-81import Policy industrial coconut oil was not covered byappendix 9 Para 5, the same could not be have been imported bythe petitioner in July/september, 1982 because it is commoncase that from 1981-82 onwards Appendix 9 Para 5 covers coconut oil" whether of edible or industrial variety. ( 39 ) THE petitioner is a holder of a letter of authority inrespect of the licences on which the coconut oil has been imported. The licences were issued to certain Export houses. They were originally issued on 4/11/1980, 23/01/1981 and 15/01/1981. The petitioner was appointed the letter of authority holder of the said licences by theauthorisation letter of 24/02/1981, 14th February,1981 and 18 18/12/1981. The licences were issued tothe Export Houses. All the licences have an endorsementnamely licensing period AM-1981. These licences have a further endorsement on the face of the licence to the followingeffect :"this licence is granted under the Government of Indiaorder dated 17-9-1975 as subsequently amendedissued under the Import and Export Act, 1947 andis without prejudice to the application of any otherprohibition or regulations affecting the importationof goods which may be in force at the time oftheir arrival. " ( 40 ) THE licences also bears an endorsement in Column 3on description of goods that the; "licence is valid for import ofitems appearing in Appendices 5 and 7 excluding, however, theitems appearing in Appendix 26 of 1980-81 policy subject tothe conditions laid down in Para. 177 (3) (5) (6) and (7) of AM1980-81. In the first instance the licences were valid for aperiod of one year. The latest revalidation for six months wasmade in January, 1982. The same was subject to the conditiox :"this licence will also not bevalid for import of itemsappearing ii Appendix 26 of Import Policy 1982-83during the extended period of validity. it was also subject to further conditions appearing in Para22211, 12 and 14 of Import Policy A?-82 (1981-82 ). The restrictions contained as per para 185 (3) of AM-81-82 shall also apply. it was also subject to further conditions appearing in Para22211, 12 and 14 of Import Policy A?-82 (1981-82 ). The restrictions contained as per para 185 (3) of AM-81-82 shall also apply. ( 41 ) NOW the goods which could be) imported in terms ofthe licence are those mentioned in Appendices 5 and 7 of Importpolicy 1980-81. Coconut is admittedly not included in theseappendices. It is to be found in Appendix 9, or even in a rawmaterial, which the petitioners claim to have imported as foundin Appendix 10. So by itself the petitioners would not be ableto import even any items mentioned in Appendix 10. But Exporthouses have been granted certain import facilities under thepolicy including additional licences as provided (Para 174 (iv)Policy 1980-81) value of additional licence is provided-Para177 (ii ). Para 177 (5) makes the additional licences valid forthe import of raw materials, components and spares (excludingthose covered by Appendix 5) which have been placed on Opengeneral Licence for Actual Users (Industrial ). It is because ofthis Para 177 (5) that the petitioners claim to import coconutoil as falling within Item I of Appendix 10 (A80-81m Policy ). Of course on my finding on Point No. 1, this plea would not evenarise. But even assuming that under 1980-81 Policy the petitioner could-have imported industrial coconut oil as a raw-material, the same could not have been imported in July/september1982, when the goods arrived because admittedly industrial variety of coconut oil was a canalised item both in 1981-82; 1982-83policy and, therefore, there was a prohibition regarding the importation of goods (namely coconut oil) at the time of theirarrival, as specifically provided by endorsement in terms of theissue of license. This license was valid for import of goodsif they were not prohibited at the time of their arrival. Thepetitioner cannot rely for import of coconut oil in a licence whichprohibits the particular item of goods. The effect of this endorsement is to make it as if there s no licence for the importcon lit oil in September, 1982. It is not as if the petitionercould import coconut oil in September 1982 but subject to certain conditions-in fact he had no licence to import coconut oilat all when the goods arrived. It would be a case of importwithout any licence. It is not as if the petitionercould import coconut oil in September 1982 but subject to certain conditions-in fact he had no licence to import coconut oilat all when the goods arrived. It would be a case of importwithout any licence. ( 42 ) THE same result follows from a perusal of Open Generallicence No. 1180, 1181, 1182 issued in 19/04/1981 and1982 issued by the Central Government in exercise of thepowers conferred by Section 3 of Imports Exports (Control)Act, 1947, by which it gave general permission to import intoindia from any country raw materials, components consumablesby Actual Users (industrial), subject amongst others to the following conditions :condition No. 1 : The items to be imported are notcoverd by Appendices 3, 5, 6, 7, 8, 9 and 15 ofthe Import Policy, 1980-81;condition No. 15 : Such goods are shipped on throughconsignment to India on or before 31/03/1981 or on before 30-6-1981 against firm ordersfor which irrevocable letters of credit are openedon or before 28-2-1981, without any grace periodwhatsoever;condition No. 16 : Nothing in this licenceshall affectthe application to any goods, of any other prohibition or regulation affecting the import thereof,in force at the time when such goods are imported. The same conditions are to be found in 1982, 1983 OGL order,while the dates correspondingly changed to the year in question. It is clear that in view of OGL order actual users (industrial) though assuming that they could have imported coconut oil during the currency of 1980-81 policy, the same couldnot have been imported from 1^81-82 policy onwards becauseadmittedly the same was a canalised item. But what is urgedby Mr. Sen is that prohibition does not apply to the presentcase where the goods are being imported on Additional Licence. If this argument is accepted position would be that actual users (industrial) itself would not be eligible to import coconut oil inseptember, 1982 but the Export House would be competent todo so. This is an unacceptable anamoly. The whole object ofadditional Licences being allowed to be utilised for import ofraw-materials is that the same may be supplied to Actual users)off the shelf (See para 175) of (A80-M81 Policy ). Raw materialsand Components imported against Additional Licence shall bedispose of only to Actual Users [para 177 (7)]. To accept theargument of Mr. This is an unacceptable anamoly. The whole object ofadditional Licences being allowed to be utilised for import ofraw-materials is that the same may be supplied to Actual users)off the shelf (See para 175) of (A80-M81 Policy ). Raw materialsand Components imported against Additional Licence shall bedispose of only to Actual Users [para 177 (7)]. To accept theargument of Mr. Sen would result in absurd situation thatwhereas the actual user for whose use and benefit raw materialis supposed to be imported would be incompetent to import itunder OGL, an agent like Export House who can only sell itto Actual user would be entitled to import a canalised item. The logic of such a situation eludes me When Para 177 (5) permits import of raw-material placed on OGL for Actual Users (Industrial) the same must be subject to the same restrictionsand prohibition as the Actual Users (Industrial ). Agent cannothave better rights than the Principal. The suggestion of Mr. Ranathat OGL order has only to be referred for the purpose offinding out which items can be imported is an effort at splittingup the object of OGL order without any justification. Whenogl order gives a general permission to import some items itgives it subject to certain restrictions. Petitioner cannot ask forthe benefit of OGL order to import certain items but claimsto be free from the fetters laid down in that very order. Rightsunder Para 177 (5) to import kind of good, must be under thesame constraint as that of an actual user (industrial ). As theactual user (Industrial) itself could not import the coconut oileven of industrial variety from 1981-82 onwards because ofthe prohibition under OGL order issued under Section 3 of theimport and Exports Act, the petitioner as a holder of the additional licence could stand on no higher footing. ( 43 ) IT was sought to be urged that the OGL order is merelya general permission but is not a prohibition. I cannot agree. Section 3 of the Import and Exports Act empower the Centralgovernment to prohibit or restrict imports. An OGL orderpassed under the said Section by which it gives general permission to import certain items but subject to certain conditions in effect prohibits the imports of these items unless thecondition mentioned in the said order are complied. I cannot agree. Section 3 of the Import and Exports Act empower the Centralgovernment to prohibit or restrict imports. An OGL orderpassed under the said Section by which it gives general permission to import certain items but subject to certain conditions in effect prohibits the imports of these items unless thecondition mentioned in the said order are complied. Thusnotwithstanding that even if during the currency of 1-980-81import policy industrial coconut oil could be imported, thesame were prohibited in terms of 1981-82 policy, 1982-83policy at the time of arrival of goods in July I September, 1982as by then these goods were canalised and no longeron Opengeneral Licence. On another ground also the goods imported in July/jseptembcr, 1982 would be held to be invalid. Revalidation was in January, 1982. Condition No. 18 of OGLorder dated 3/04/1981 provides by which shipment ofgoods should have been received by 31/03/1982 or by 30/06/1982 and for which irrevocable letter of credit hadbeen opened on or before 28/02/1982. In the present case the goods arrived in September, 1982. Thus even interms of Condition No. 18 of OGL order of 1981 the goodscould not have been imported validly. This is another reasonfor holding the imports to be invalid. ( 44 ) MR. Sen then argued that there was a vested right inthe petitioners to import the items which were in OGL under1980-81 policy even though they may be canalised in subsequent years. Stress is laid on the fact that licence issued in1980-81 must continue to govern the requirement of importand the purpose of revalidation under Para 191 read withpara 199 is only to extend the period or validity for the shipment permissible for the goods. Thus whereas previously thegoods could be imported within a year of the issue of licencethey may be imported later on. But this arrival date can haveno relevance to the items which could be imported. The argument is misconceived. It assumes a certain vested right toimport certain items and denies power to the Union of Indiato change that policy subsequently. Such an argument was repelled in a Divsion Bench judgment of this Court in Supertraders and another Vs. Union of India and others 1983e. The argument is misconceived. It assumes a certain vested right toimport certain items and denies power to the Union of Indiato change that policy subsequently. Such an argument was repelled in a Divsion Bench judgment of this Court in Supertraders and another Vs. Union of India and others 1983e. L. T. 258, wherein it was observed :the whole stress of this argument seems to be as ifduring the financial year, the rate of duty of exciseor custom or the list of goods which can be imported or exported as indicated either in the Import Policy or in the schedule is immutable. These arguments proceed on misulnderstanding of therole. and importance of Import and Export Policiesof a State. In the matter of import and export noparty can claim any vested right to compel thegovernment or the legislature to refrain frommaking any changesduring the financial year. (page 270 ). "policies of imports or exports are fashioned not onlywith reference to internal or international tradebut also on monetary policy, the development ofagriculture and industries and even on the politicalpolicies of the country but rival theories and viewsmay be held on such policies. If the governmentdecides an economic policy that import or exportshould be by a selected channel or through selectedagencies the court would proceed on the assumptionthat the decision is in the interest of the generalpublic unless the contrary is shown-- (See 1973sc 2711 and 2716 ). The same view against holding of any vested right in the importer or invoking the plea of promissory estoppel has beenaccepted in Full Bench of this Court in Bar. sal Exports (P) Ltd. and others Vs. UOI and Others, 1983, Delhi 445 (JPr. 8, 10, 11 ). Reference may with advantage be made to The Deputy Assistant Iron and Steel Controller, Madras and another Vs. L. Manickchand Proprietor, Katralla Metal Corporation. Madras1972 SC 935. In that case appellant applied in 1968 for licence for stainless steel in December, 1968. But by the time itcame to be considered in 1970. The item had become canalised. The High Court had granted the writ applying the import policyat the time of the application. The Supreme Court allowed theunion appeal and refused to issue a mandamus to consider theapplication in terms of 1968-69 policy. But by the time itcame to be considered in 1970. The item had become canalised. The High Court had granted the writ applying the import policyat the time of the application. The Supreme Court allowed theunion appeal and refused to issue a mandamus to consider theapplication in terms of 1968-69 policy. It observed :"an applicant has no absolute vested right to an importlicence in terms of the policy in force at the timeof his application because from the very nature ofthings at the time of granting the licence the authority concerned may often be in a better position tohave a clearer overall picture of the various factorshaving an important impact on the final decisionon the allotment of import quota to the variousapplicants. Mr. Sen next sought to contend that the effect of revalidationis to keep the old licence intact and only 1980-81 policy will beapplicable to imports. I cannot agree. Revalidation only permitsthe import of goods at a later period which it would not be atall possible, if revalidity was not granted. That is the only significance of revalidation. But as to what goods can be importedcannot be determined by revalidation it has no relevance to thisaspect. Only these goods can be imported under OGL, whichcontinue to be included in OGL right upto the date of arrivalof the goods. Their inclusion in the import policy of earlierperiod would not authorise the importer if since then they havebeen canalised. As a matter of fact the government itself hasdealt specifically in Para 222 on this matter of Additional licences issued to Export Houses. Para 222 (1) provides that Additional licences for 1980-81 will cease to be valid for import ofitems which do not appear in Appendix 5 and 7 of Importpolicy 1981-82. Para 222 (2) however, gives a benefit byproviding that such licence for 1980-81 will be valid for importof items appearing in 1981-82 policy, even though such itemswere not eligible for import as per Import Policy 1980-81. Nowthe additional licence of the petitioner is to import goods onlyin Appendix 5 and 7 of 1980-81. Revalidation is in terms, ofpara 222 (1) (2) (4 ). The result is that petitioners licence issuedin 1980-81 can only operate for these items included in 1981-82policy. It may be that he may not be able toe to import some goods,or it may be that the list has increased by inclusion in later Import Policy of 1981-82. Revalidation is in terms, ofpara 222 (1) (2) (4 ). The result is that petitioners licence issuedin 1980-81 can only operate for these items included in 1981-82policy. It may be that he may not be able toe to import some goods,or it may be that the list has increased by inclusion in later Import Policy of 1981-82. The significance is that goods if notimported under licence issued under 1980-81 policy can onlybe imported if they are permitted under 1981-82 policy. If themain licence cannot authorise of import items not included inappendix 5 and 7 of 1981-82 policy, even if they were includedin 1980-81 policy, by what logic can coconut oil even if readwith Para 177 (5) and Appendix 10 item No. 1 of 1980-81policy be imported in September, 1982 when from 1981-82policy onward it had been included as a canalised item. Comsistency demands that item must be importable at the time ofarrival-not that they were importable in the previous policy. Export Houses are not to be given a bonanza by being permitted to import item which is prohibited to Actual Users (Industrial) for whose benefit the whole exercise of importation isdone. ( 45 ) IT will thus be clear that industrial coconut oil couldnot have been imported in September, 1982 even though it wasin persuance of a revalidated licence issued during 1980-81 because of the prohibition provided in the OGL order of 1980 thatnothing in that licence shall effect the prohibition affecting theimport thereof at the time when such goods are imported. Asin September, 1982 coconut oil of all variety edible or industrialwas a canalised item it was a prohibited item. By virtue of subsection (2) of Section 3 of Import and Exports Act all such prohibited goods shall be deemed to be goods of which import isprohibited under Section II of the Customs Act which givespower to the Central Government to prohibit importation or exportation of goods. In that view Section 111 (d) of the Customsact will immediately be attracted because coconut oil will begoods which have been imported contrary to the prohibitionimposed under the Act and, therefore, shall be liable to confiscation. ( 46 ) ON the above finding it is really not necessary to discussin detail another objection raised by the counsel for the petitioners to one of the findings of the Collector. ( 46 ) ON the above finding it is really not necessary to discussin detail another objection raised by the counsel for the petitioners to one of the findings of the Collector. It win be seenthat the Collector has also found that as the goods were imported in September, 1982 it was in violation of Para 185 (3) of1981-82 policy read with public notice dated 25th February,1982 subject to which the licence of the, petitioner had been revalidated and which required that shipment of goods shall fakeplace by 31/03/1982. Counsel for the petitioner hadcontended that even assuming that this condition was breachedthe same will not permit the confiscation of goods became thebreach of a condition of a licence does not authorise confiscation. The counsel referred to M/s. East India Commercial Co. Ltd. Calcutta and another V. Collector of Customs, Calcutta1962 SC 1893 (12) and Additional Collector of Customs, Calcutta and another Vs. M/s. Best and Co. 1971 SC 170 (13 ). Inthe former case licence had been issued for the import of tubes. It also had a condition that goods will be utilised only for consumption for the licence holders factory and no portion will besold. The importer, it was found, had, however, sold the goods. It was in that context that the Supreme Court found that theimports and Exports Act did not permit a condition to beimposedthat after the import of the goods will not be sold. It also foundthat under Section 167 (8) Sea Customs Act, 1878 goods couldnot be confiscated imported under a valid licence on the groundthat a condition of licence had been breached. Similarly in 1971sc 170 (Supra) a licence was granted to import certain machinery for a maximum CIF value of Rs. 45,000/ -. Later on ittranspired that the value of the machinery imported was Rs. 45,179. On that ground the authorities wanted to confiscatethe goods. The court held that even if it was a breach of thecondition of licence it was open to the authorities to direct prosecution but no order for confiscation of goods could be made. These cases are clearly distinguishable. In the present case evenif we ignore the violation of Para 185 (3) of policy, the petitioner would still have defaulted in terms of Condition No. 18of OGL order of 3-4-81 which required the consignment to beshipped by 31/03/1982 and a irrevocable letter of creditto have been opened in February. These cases are clearly distinguishable. In the present case evenif we ignore the violation of Para 185 (3) of policy, the petitioner would still have defaulted in terms of Condition No. 18of OGL order of 3-4-81 which required the consignment to beshipped by 31/03/1982 and a irrevocable letter of creditto have been opened in February. 1982, because the goods i. e. industrial coconut oil was imported in September, 1982 and letter of credit opened in July, 1982. The present is not a casewhere the import of coconut oil could be validly imported inseptember, 1982 but certain conditions had been imposed forthe import and those conditions had been breached, like in theabove Supreme Court decisions, which have no applicability. The present is a case where import of coconut oil of all varietyis prohibited in September, 1982. The confiscation has beenordered because import has been made in contravention of astatutory prohibition. The analogy of the breach of conditionsof a licence cannot apply. It can only apply where there is avalid licence to import the goods but certain other ancillaryconditions are breached. Here the very goods i. e. coconut oilcould not be validly imported. The import was, therefore, prohibited and a penalty of confiscation is permissible in terms ofsection 111 (d) of Customs Act. ( 47 ) POINT No. 2 is, therefore, decided against the petitionersand it is held that the import of industrial coconut oil being aprohibited item could not have been imported by the petitioners. ( 48 ) POINT No. 3 : The next contention of Mr. Rana was thatthe impugned order of the Collector dated 20/12/1982was in any case liable to be quashed irrespective of the factwhether on merits it is held that coconut oil was a canaliseditem under Appendix 9 item 5 of Policy, on the sole groundthat the order of Collector was passed at the instance of a seniorofficer and was not his independent decision. Now it is correctthat the order of the custom authority imposing contificationand penalty under the Customs Act is quasi judicial (See M/s. Pioneer Traders v. Chief Controller of Imports and Exports,pondicherry and others, 1963 SC 734 Para 14) (14 ). It is equally well settled that the powers exercised by the Collector isquasi judicial power and cannot be controlled by the directionsissued by an outside authority (See : Orient Paper Mills Ltd. v. Union of India 1969 SC 48) (15 ). It is equally well settled that the powers exercised by the Collector isquasi judicial power and cannot be controlled by the directionsissued by an outside authority (See : Orient Paper Mills Ltd. v. Union of India 1969 SC 48) (15 ). Here the proceedings by thecollector were initiated by the issue of show cause notice dated 24/11/1982 to the petitioners in respect of the consignment in dispute. Attention is drawn to the copy of showcause having been sent to one Mr. Takhat Ram, Jt. Chief Controller Of Imports and Exports, New Delhi, to build an argumentof extraneous influence. It appears that Mr. Takhat Ram hadaddressed a letter dated 4/09/1982 to Collectoratesof Bombay, Calcutta, Madras and Cochin wherein it was pointed out that it has been reported to the Commerce Secretarythat huge quantities of coconut oil are on their way and pointing out that coconut oil both edible, and non-edible is canalisedthrough STC and asking that before any consignment is cleared,the matter should be brought to the notice of the government. On 11/10/1982 Mr. L. Prashad, Deputy Chief Controller for Exports, on behalf of Chief Controller of, Imports/exports sent a copy of Mr. Takhat Ram's letter dated 4/09/1982 (which had obviously not been sent to Collector,ahmedabad) and also stating that clearance of imports madeby the petitioner should not be made without getting prior clearance from the office of Chief Controller of Imports and Exports. Obviously in persuance of these queries one Mr. Nagpal, Director of Customs, Ministry of Finance and Customs by his letterdated 25/10/1982 wrote to Mr. Takhat Ram pointingout that it was not very clear whether the import by the petitioner would be covered by revalidated Additional licence andasking that matter be treated as most urgent as the goods hadarrived at Kandla and were awaiting clearance. It is in thisbackground that it is urged that the impugned order of the Collector must have been passed on the direction of Mr. Takhatram without applying his own mind. In support of the supposed influence of Mr. Takhat Ram reference is also made to thefact that the impugned order of the Collector dated 17/12/1982 was also endorsed to Mr. Takhat Ram, Jointcciande. In my opinion too much is being read in this ordinarycommunication sent by Mr. Takhat Ram. Takhatram without applying his own mind. In support of the supposed influence of Mr. Takhat Ram reference is also made to thefact that the impugned order of the Collector dated 17/12/1982 was also endorsed to Mr. Takhat Ram, Jointcciande. In my opinion too much is being read in this ordinarycommunication sent by Mr. Takhat Ram. A reference to theletter of 4/09/1982 would show that the governmentapparently was worried that large quantities of coconut oil wasbeing imported by private parties though it was a canaliseditem. This was a normal administrative caution to the Collectors to be careful in the matter of such imports. It is wrong tomagnify Mr. Takhat Ram's role. The communication was onbehalf of Chief Controller of Imports and Exports. Mr. Prashadand Mr. Nagpal were also associate with such enquiry. Ofcourse the letter written by Mr. L. Prashad on 11/10/1982 making a specific reference to the import made by thepresent petitioners and also directing that clearance should notbe allowed without getting prior clearance from the office ofcci was in a manner of technically speaking unfortunate. Butit cannot be treated with suspicion and as conspirational as wasthe suggestion of Mr. Rana. Nor is it a communication froman intermeddler. In the counter affidavit it has been specificallystated :"respondent No. 3 as duty bound, has independentlyexercised his quasi-judicial powers and decided thematter in light of the interpretation that he considered necessary to adopt in accordance with law. The STC is not the constituted authority to interpretthe Import Policy. "issue of any secret instructions issued to respondent No. 3 havebeen denied in the section. The Collector of Central Excisemr. Kumar also has filed his reply denying any extraneous influence in the matter of his decision making. He hasspecifically stated that he gave his decision independently and withoutbeing influenced in any manner by any correspondence or direction. That this matter was agitating the department is clearfrom the order of the Central Government dated 31/03/1981 when hearing revision petition, where it held that industrial coconut oil was not a canalised item. The order itself showsthe Joint CCIande had himself written to the government by hisletter of 28/02/1981 pointing out that interpretationgiven by the STC that industrial coconut oil was not canalisedwith them was not correct and that in any case STC was not acompetent authority to give this classification. The order itself showsthe Joint CCIande had himself written to the government by hisletter of 28/02/1981 pointing out that interpretationgiven by the STC that industrial coconut oil was not canalisedwith them was not correct and that in any case STC was not acompetent authority to give this classification. The matter thuswas being examined at the level of the Central Government andno motive can be attributed to the Collector simply becausehe gave a decision adverse to the petitioners. It is correct thatthe collector's order unfortunately in the discussion makes noreference to the order of the Central Government dated 31stmarch, 1981. But it is significant to note that the Collectordoes notice the order of the Central Board dated 23/01/1981, the very order which was affirmed by the Centralgoverment on 31/03/1981. No oblique motive can be attributed on this account. There was no intention to ignore acontrary decision because in terms of hierachy the Collector isas much a subordinate authority to the Central Board as to thecentral Government. For the reasons that the Collector couldand did not follow the view of the Central Board were equallyvalid for not following the decision of the Central Government,as it had only affirmed the Board's view. No advantage wasgained by the collector by the inadvertant omission to mentioncentral Government's order. Mr. Rana still insists that thesefacts are sufficient to prove that the Collector's order is motivated. He says that in matters of malafide acts of public officials,onus of proof of malafide is not to be proved beyond reasonabledoubt as held in Mis. Pannalal Bmjraj and others v. Union ofindia and others, 1957 SC 397 (16 ). But the Court nowherelaid down that the more ipso dixit of malafide allegation madeagainst the public officials discharges the onus and it is for theofficial to prove the negative. It is correct that It is obviouslydifficult to establish the state of mans mind. but it must beremembered that making charges without any sound basis isnot enough and that the charge of bad or ill will is not to beheld established except on clear proof thereof, and "doubtless,he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its powers. (See: 1964 SC 72 ). Now in the presentcase there is no suggestion that the Collector Mr. Kumar or Mr. (See: 1964 SC 72 ). Now in the presentcase there is no suggestion that the Collector Mr. Kumar or Mr. Takhat Ram had any hostility or had motive against the petitioner. Nothing is stated that these officers acted under theinstructions of any of their particular superiors. Resort to thebald allegation of secret instructions, which have been categorically denied, cannot advance the petitioners case. The allegation of malafide and extraneous influence acting on the decision of the Collector is an empty rhetoric behest of any materal. I must repel such an allegation. Point No. 3 is decidedagainst the petitioners. ( 49 ) POINT No. 4 :as mentioned above Central Government exercising thepowers under Section 131 (3) of the Customs Act, 1962 inanother case, by its order dated 31/03/1981 has held thatthe commodity coconut oil mentioned in Appendix 9para 5 of1980-81 policy only covered the edible variety and, therefore,the non-edible variety of coconut oil was not a canalised item. Mr. Rana says that this interpretation is binding on a subordinate authority like the Collector of Customs who had no jurisdiction but to hold accordingly and, therefore, must be compelled to do so by this Court issuing the necessary, writ and direction. ( 50 ) THIS argument of Mr Sen and Mr. Rana rests on the fallaciousassumption that the principles of resjudicata or estoppel prohibitthe taxing authorities from taking a different view of law oncea higher hierachical statutory authority has taken a particularview. According to them until the High Court or the Supremecourt takes a different view, a decision once given by thehighest revisional authority or say under the Customs Act mustcontinue to govern a decision on the same point even in thecase of another party or for different period. It is relevant tonote that the view of the Central Government in its order dated 31/03/1981 was not taken in the case of the presentpetitioners. Their case relate to another party. So that eventechnically speaking resjudicata as such cannot apply becausethe parties are different. That is why emphasis was on estoppel by urging that the Collector is estopped from taking a viewcontrary to that taken by the Central Government. This argument which seeks to apply the principle of estoppel in revenuematters runs counter to the well established principles of lawthat there is no estoppel in the matter of tax laws which wouldalso include proceedings under the Excise and Customs Act. This argument which seeks to apply the principle of estoppel in revenuematters runs counter to the well established principles of lawthat there is no estoppel in the matter of tax laws which wouldalso include proceedings under the Excise and Customs Act. In Palkhiwala Law and Practice of Income Tax 7th Edition atpage 854 and 855, a series of decision have been summarised,the purport of which is : (A) that the doctrine of res judicata or estoppel byrecord does not apply to the decision ofassessing officer; (B) a finding or decision by income tax in one yearmay be departed in a subsequent year; and (C) If a department wrongly arrived at a certain imdingin a past year and assessee accepted it or if thedepartment failed to protest against a wrong departure from the regular method of accounting in aprior year that can give the assessee no claim to havethe mistake repeated in a subsequent year in hisfavour. ( 51 ) IN Commissioner of Income Tax v. Brij Lal Lohia andmahabir Prasad Khemka, 1972 ITR 273 Vol. 84 (17), the factswere that assessee had made a gift to Ins brother and in hisearlier assessments the Income Tax Authorities had held thatthey were not genuine gifts. In assessees appeal the High Courtand Supreme. Court refused to interfere with the finding of thetribunal. This very question, namely whether these gifts weregenuine or not again came up for consideration before the authorities in subsequent years. The Tribunal took into accountsome new facts and came to the conclusion that gifts in question were genuine gifts. The Revenue pleaded before the Supreme Court that it was not open to the Tribunal to take adifferent view of the matter. This plea was rejected by thesupreme Court by observing :"the fact that in the earlier proceedings the Tribunaltook a different view of those deeds seeing a conclusive circumstance. The decision of the Tribunal reached during those proceedings does notoperate as a resjudicata. "this case shows with rolling example that the very sametransaction of gift was held to be not genuine in the previousassessment year but was held to be genuine gift in the subsequentyears by the Income-tax authorities and yet no plea of estoppelwas allowed to be raised. Mr. "this case shows with rolling example that the very sametransaction of gift was held to be not genuine in the previousassessment year but was held to be genuine gift in the subsequentyears by the Income-tax authorities and yet no plea of estoppelwas allowed to be raised. Mr. Rana in support of his contention that the Collector can be compelled to refund the tax collected only on the short ground that the view of law taken byhim is contrary to the view taken by the Central Government,refers us to Bharat Carpets Ltd. v. Union of India, 1978 E. L. T. (III ). In that case the plaintiff company had brought a suitfor refuse of even Rs. 7 lakhs. In that case the plaintiff wasthe manufacturer of woollen tuffed carpets which he claims werenot excisable goods and hence no excise duty could be levied. His plea was, however, rejected by the Collector of Excise, andin pursuance to the assessment he paid an amount of Rs. 7lakhs as excise duty by 20-4-72. But the plaintiff had alsochallenged the earlier assessment in revision, which was accepted by Central Government and it was held therein that thewoollen carpets manufactured by the plaintiff were not excisablegoods. Naturally the plaintiff became entitled to the refund ofthe amount paid by him. The Assistant Collector, however,refused on the ground that the revision petition though accepted on 14-4-1972 related only for t period upto March, 1968itself. It was then the plaintiff filed a suit for the recovery ofthat amount which was decreed in view of the fact that thecentral Government had held that goods manufactured. by theplaintiff obviously no excise could be levied. In my view thecase was decided on its own facts and should not be held tobe laying any broader view applicability of estoppel in revenuematters, which if it did, with respect would have to be held tobe erroneous view of law. Bharat Carpets- case was noticed inj. K. Synthetics Ltd. and Another v. Union of India and Others, 1981elt 328 (18), and it was commented that the contention on itsbasis runs contrary to the well established principle of law thatthe doctrine of resjudicata or estoppel cannot apply in the mattersof this kind. Bharat Carpets- case was noticed inj. K. Synthetics Ltd. and Another v. Union of India and Others, 1981elt 328 (18), and it was commented that the contention on itsbasis runs contrary to the well established principle of law thatthe doctrine of resjudicata or estoppel cannot apply in the mattersof this kind. Though the Bench held in that particular case thatthere was no change in the factual or legal position from theview which had been taken earlier by the Central Governmentso as to justify excise authorities to reopen the matter for subsequent years, the Bench accepted :"the principle of res judicata or estoppel is not applicable to tax matters thus the view taken by theassessee or appellate, revisional authority or eventhe High Court in respect of any one assessmentperiod will not be final and conclusive for subsequent assessment period but such earlier decisionsshould be a cogent factor in the determination ofthe same point in subsequent assessment period. " The Bench also accepted that there can be no reason why thesame principle will not be applicable to excise matters (Para 13 ). Though I may say, with respect that the view taken by thedivision Bench does seem to travel quite beyond the parameterslaid down by the various High Courts and Supreme Court decisions that the principle of estoppel and resjudicata does notstrictly apply in revenue matters. But even the Bench was continous enough to limit this power only to the extend that it precludes the same authority or one subordinate to him from reviewing his views arbitrarily and that to only in the case of theparticular assessee where the earlier decision hadbeen taken. The Bench was keen to emphasisethat it did not wish to fetter the rights of thedepartment to frame and correct assessment, merely because of anerroneous view taken earlier due to oversight lack of proper consideration or other reasons and observed down that in such casesthe department would still have a remedy of enunciating its viewin another case' where its hands are not so tied and matter can bepursued therewith. Even applying the ratio of Division Bench therewas full jurisdiction in the departmental authority like the Collector to give his independent decision as he was not bound by thedecision given by the Central Govt. dated 31/03/1981which related to a different party. Reference by Mr. Even applying the ratio of Division Bench therewas full jurisdiction in the departmental authority like the Collector to give his independent decision as he was not bound by thedecision given by the Central Govt. dated 31/03/1981which related to a different party. Reference by Mr. Rana tobhopal Sugar Industries Ltd. v. Income Tax Officer 1961 SC182 (19) and Indian Hume Pipe Company Ltd. v. The State ofuttar Pradesh and others, 29 Sales Tax Cases 487 (20) are of noavail. In that case direction was given by higher authority todecide the case in a particular manner and the same was not carried out. No such position arises here. Dharam Chand Jain V. Stateof Bihar 1976 SC 1433 (21) is also distinguishable. In that case thepetitioner applied for a mining lease. The State Government passed no order on it and in revision the Central Government directedthe State Government to decide the matter by 30. 9. 62. Inspite ofthis the State Government failed to pass any order. In second revision the Central Government byfts order 21-11-64 directed thestate Government to grant the mining lease. Inspite of this specificdirection the State Government rejected the application by itsorder of 17. 12. 66. Third revision was filed before the Centralgovernment on 27. 1. 1967. On receiving the comment of Stategovernment the Central Government rejected the revision, against which the appellant went to the Supreme Court which held thatin view of the earlier dscision by the Central Government dated2. 1/11/1964 the State Govt. was bound to give the mining lease and in view of the earlier order of the Central Government the State Government's action in refusing to carry it outcould not have been upheld by the Central Government subsequently even when no new facts were given. No such eventualityarises here. There is no decision of the Central Government infavour of the petitioner. Rather there is the decision by the Collector against him, which I have held above was free to fate anydecision as it was not bound by the decision of the Centralgovernment. ( 52 ) A very elaborate discussion on there being no estoppelor resjudicata in the matter of tax matter is to be found inmohammed Falil Abdul Gaffoor and Others, the Trustees of theabdul Gaffoor Trust Vs. Commissioner of Income Tax. Colombo1961 AC 584 (22 ). ( 52 ) A very elaborate discussion on there being no estoppelor resjudicata in the matter of tax matter is to be found inmohammed Falil Abdul Gaffoor and Others, the Trustees of theabdul Gaffoor Trust Vs. Commissioner of Income Tax. Colombo1961 AC 584 (22 ). In that case exemption was claimed on theground that the income was that of trust of a public characterestablished solely for charitable purposes. The Commissioner of Income Tax sought to deny the assesscefor the year 1950-51 to 1954-55 an exemption which it had beenheld entitled to under 1949-50 under the orders of Appellateboard of Review. The assessee set up the plea of estoppel inseeking to reopen the question decided earlier that the trust wasset up solely for charitable purposes. The privy Council rejectedthe plea and affirmed the view of Courts below and held thatthe trust is not a trust of public character solely for charitablepurposes. It emphatically held that the plea of estoppel was notopen by observing. The critical thing is that the dispute which alone canbe determined by any decision given in the courseof these proceedings is limited to one subject only. the amount of the assessable income for the year inwhich the assessment is challenged. To a similar argument like raised by Mr. Rana that the question whether industrial coconut oil was canalised in 1980-81policy having been decided by Central Government this questionof law cannot be reopened even insome other subsequent proceedings I may quote what was said in "caffoor" case :"although, of course, the process of arriving at the necessary decision is likely to involve the consideration ofquestions of law, turning upon the construction ofthe Ordinance or of other statutes or upon the general law, and the tribunal will have to form Its viewon those questions, all these questions have to betreated as collateral or incidental to what is the onlyissue that is truly submitted to determination. "to invoke the principle of natural justice, estoppel in taxmatters is thus inapposite. The lament of Mr. "to invoke the principle of natural justice, estoppel in taxmatters is thus inapposite. The lament of Mr. Rana that such acourse would open up serious dislocating unusual possibilities canbe satisfactorily quietened by what was said in Caffoor's case (Supra) to a similar complaint, namely:"it may be that the principles applied in these cases forma somewhat anomalous branch of the general law ofestoppel per resjudicatum and are not easily derivedfrom or transferred to other branches of litigationin which such estoppels have to be considered; butin their Lordships' opinion, they are well establishedin their own field, and it is not by any means to beassumed that the result is one that should be regretted in the public interest", (para 599 ). The contention to deny jurisdiction to the Collector to passan independent order on its own must be rejected. I must alsonote that the Collector has given sufficient additional angle tojustify consideration of the matter afresh, notwithstanding theearlier decision by the Central Government. ( 53 ) BUT even had I held that the Collector was bound by thedecision of the Central Government dated 31/03/1981, itcould only have resulted in the matter being remitted to thecustom authorities for a fresh decision according to law, a coursestrongly opposed by Mr. Sen and Mr. Rana their plea was thatif the binding compulsive nature of the decision of the Centralgovernment is accepted the only inevitable course for this Courtis to quash the Collector's order and direct the refund of redem-ption fine. I cannot agree. Had I agreed with the view of thecentral Government on merits as put forth by the petitioner theywould have been no difficulty in quashing the impugned order ofthe Collector and setting aside the whole proceedings takenagainst the petitioner for confiscation. But as mentioned above. I agree with the Collector. In my opinion the view of the Centralgovt. holding that industrial coconut oil was not canalised iteis plainly untenable. In view of this by what principle or logiccan I still be asked to issue a writ of certiorari quashing theorder of the Collector (which I consider to be correct in law)and set aside the proceedings taken for confiscation by applyingthe decision of the Central Government which I consider untenable. Can anything be more absurd? Proceedings under Article226 are in the nature of a high prerogative writ. It is well settledthat a writ of certiorari is not a matter of course but is discretionary. Can anything be more absurd? Proceedings under Article226 are in the nature of a high prerogative writ. It is well settledthat a writ of certiorari is not a matter of course but is discretionary. It is issued in order to prevent manifest injustice. If thecourt comes to the conclusion that a view of law taken by thelower authority is unsustainable and there is injustice it may inexercise of its discretion quash the offending order. But what Mr. Rana asks is that notwithstanding on merits that I agree with theview of the Collector, the same should nevertheless be set asideonly on the sole ground that the Central Government had takena contrary view (which view I hold to be erroneous ). So I mustexercise my discretion in enforcing a patently erroneous view ofthe Central Government. Reference by Mr. Rana to 1965 (2)R. Vs. Paddington Valuation Officer and another AER 836 (23)rather goes against him. Lord Denning only affirmed his view,namely that "if a Tribunal bases its decision on extraneous circmnstances which it ought not to have taken into account or failsto take into account the vital consideration which it ought tohave taken into account then its decision may be quashed on acertiorari, and a mandamus issued for it to hear the case afresh. " (page 842 ). In view of my findings on merits being against thepetitioner I am not persuaded to issue a writ quashing the orderof the Collector, which I consider, has given a correct interpretation of the policy. Another course can be only unjust and anamalous. More so and especially in view of the preliminary objectiontaken by the respondents that this petition should not be entertained because a perfectly good remedy of an alternative remedyof appeal being available to the petitioners. In the present casethe decision of the Collector was given on 20/12/1962. By that time the amendments made by Section 50 and 5thschedule of the Finance Act No. 211980 providing for a appellate tribunal had come into force. The petitioner thus couldhave filed an appeal under section 129a to the Appellate Tribunal, which would have been free either to agree with the reasoning of order of Central Government of 31/03/1981; itcould as well take a contrary view and affirm the Collector'sorder. The petitioner thus couldhave filed an appeal under section 129a to the Appellate Tribunal, which would have been free either to agree with the reasoning of order of Central Government of 31/03/1981; itcould as well take a contrary view and affirm the Collector'sorder. It could not have been urged by the petitioner if he hadfiled an appeal that the Appellate Tribunal was bound by theearlier view of the Central Government dated 31/03/1981because being an independent quasi judicial body there was nocompulsion on it to agree with the earlier view of Central Government. Even if the amendment Act had not come into forcethe Central Government hearing a revision under old Section131 being a coordinated authority could take a different viewfrom the one taken by it earlier on 31/03/1981, more soas the parties are; different and which power was so clearly recognised in J. K. Synthetic case. If thereafter the petitionershad followed the normal remedy provided under the Act therewas a possibility that the Appellate Tribunal may take a different view from the one' taken by Central Government on 31stmarch, 1981 and indeed affirm the Collector's order. If thereafter the petitioners had come in writ petition they could onlysucceed if they persuaded us on merits to agree with them. Noargument would have been available to urge that the Collector'sorder should be quashed only on the short ground of not having followed the earlier Revisional authority order 31-3-1981. In fact in such a situation this plea would be plainly unarguable. But by not availing of the normal remedy of appeal, the petitioner seeks to inyoke the discretionary Jurisdiction of this Court tocompel the Custom authorities to follow and apply the view ofthe earlier Central Government's Revisional order, but withoutgiving any opportunity to the Collector to persuade Appellatetribunal to take a different view. This course would close andprompt all avenues to obtain a correct interpretation of importpolicy, even when we find that the Joint CCIande and even thecommerce Secretary, Government of India were quite purturbedat the large scale imports of coconut oil which were being madeapparently because of earlier decision of Central Government'sorder of 31/03/1981. This Court cannot allow itself tofall in this trap which apart from being against all principles andprecedent will result in perpetuation) of wrong interpretation. This Court cannot allow itself tofall in this trap which apart from being against all principles andprecedent will result in perpetuation) of wrong interpretation. by denying the authorities under the Customs Act to have thematter examined fresh by the Appellate Tribunal but and later,if necessary by High Court and even the Supreme Court. Thiscourse which will make the Court an instrument to perpetuateunjustice must be repelled. The plea of the petitioner is thusrejected. Point No. 4 has to be held against the petitioner. ( 54 ) MR. Iyer in his forefront of the arguments raised preliminary objection to the maintainability of the writ petitionon the ground of : (a) alternative remedy by way of appeal being maintainable; (b) order having been passed by Collector, Ahmedabad,which is outside the territorial jurisdiction of thiscourt. ( 55 ) BY Section 50 read with Fifth Schedule of Financeact (No. 2) of 1980, Chapter 15 has been substituted in Customs Act, 1962. It came into force with effect from 11-10-1982. Section 129 of Customs Act has constituted on Appellate Tribunal to be called the Customs Excise and Gold (Appellatetribunal ). It is headed by a retired Judge of this Court. Section129a provides for an appeal against a decision or order passedby the Collector of Customs. In the present case show cause wasissued on 24-11-82. As such appeal undoubtedly lay to theappellate Tribunal-it is so even conceded by the petitioner. Section 130 also provides for a question of law to be referredto the High Court throw any question of law. arising out of theorder passed by Tribunal in appeal. Section 130e also providesfor an appeal to the Supreme Court against any judgement ofhigh Court delivered by a reference by it. This undoubtedlya regular appeal to an independent Tribunal being available thepetition should be held incompetent for it is well settled :"it is well settled that when an alternative 'and equallyefficacious remedy is open to a litigant he shouldbe required to pursue that remedy and not invoicespecial Jurisdiction of the High Court to issue aprerogative writ. This undoubtedlya regular appeal to an independent Tribunal being available thepetition should be held incompetent for it is well settled :"it is well settled that when an alternative 'and equallyefficacious remedy is open to a litigant he shouldbe required to pursue that remedy and not invoicespecial Jurisdiction of the High Court to issue aprerogative writ. It is true that the existence ofanother remedy does not affect the jurisdiction ofthe court to issue awrit, but as observed by thiscourt in Rashid Ahmad v. Municipal Board, Kairana (AIR 1950 SC 161) the exigence of an adeouatelegal remedy is a thing to be taken into consideration:in the matter of granting writs vide also K. S. Rashidand Son v. Income Tax Investigation Commission (AIR 1954 S. C. 207), and where such remedy existsit will be a sound exercise of discretion to refuse tointerfere in a petition under Art. 226 unless thereare good grounds therefor, (see Union of India v. T. R. Varma, AIR 1957 S. C. 882 ). This positionwas accepted in A. V. Venkateshwaran v. Ramchand Sobha Wadhwani and another (AIR 1961s. C. 1506 ). " See Super Traders and another vs. UOi401, 1983 ELT 258 at 276 ). ( 56 ) REFERENCE is also made by Mr. Iyer to N. T. Veluswamithevar v. Raja Nainar and Others, AIR 1969 SC 422 (24),a. Narayanan and another v. Commissioner of Income Tax, air 1967 SC 433 (25) and Bhopal Sugar Industries vs. D. P. Dube, AIR 1967 SC 549 (26) in support of his contention. Thesupreme Court depreciation the attempt of party not availingof the normal remedies of appeal, revision reference providedunder the Income Tax Act or thei Sales Tax Act and to approachthe High Court direct against the action of first officer. (Seechampalal Binani vs. The Commissioner of Income Tax, AIR1970 SC 645 (27 ). ( 57 ) THE latest trend also is to discourage the filing of thewrit petitions direct on the ground that the peitioner have anefficacious alternative: remedy available by way of appeal (Seetitaghar Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC603 (28 ). In the present case the main part of issue is whethercoconut oil (industrial) is covered by a particular entry. Thecollector has undoubted jurisdiction to decide it. though he maycome to erroneous finding. Ltd. v. State of Orissa, AIR 1983 SC603 (28 ). In the present case the main part of issue is whethercoconut oil (industrial) is covered by a particular entry. Thecollector has undoubted jurisdiction to decide it. though he maycome to erroneous finding. But that does not made his orderwithout jurisdiction for he has jurisdiction to decide rightly orwrongly and the aggrieved party can only have that order cancelled by way of remedy provided under the Statute. The otherobjection that the Collector should have followed the Centralgovernment Order of 31-3-81 is rather an argument againstthe petitioner. For if he feels that a higher authority has takenthe view being propounded by the petitioner, it is best to approach that authority. Of course, it will be open if it so feels,for that coordinate authority (now the Tribunal) to take a contrary view from that being urged by the petitioner. The petitioner thus by not going in appeal, and at the same time urging,as noticed earlier that the Court should issue writ quashing theproceeding initiated by the Collector on the sole ground of itsdecision being contrary to Central Government (without agreeing to examining the merits by us or either remitting it to Collector for reconsideration) is obviously taking the impermissiblecourse of not availing a normal remedy of appeal and at thesame time asking for quashing the proceedings without examination on merits at any froum. This portion itself shows howinequitable and improper has it been to entertain this petitiondirect. The decision of State of U. P. v. Mohd. Nooh ATR 195sc 86 (29), has no relevance. The petitioner was given fullhearing. The argument that in the order of Collector referenceis made to the meaning of coconut oil as given in Indian Standard Specification (which Mr. Sen says was not mentioned during the hearing) is an argument of despair. Reference by thecollector to the various publication for the meaning to be givento a word does not involve absence of hearing resulting in theorder being a nullity as in Noohs case (supra ). That was a caseof total lack of jurisdiction as explained in Titaghar Paper case (Supra ). I can thus find no plausible much less convincing reason why the petitioner should not have failed of proper effectiveremedy of appeal. That was a caseof total lack of jurisdiction as explained in Titaghar Paper case (Supra ). I can thus find no plausible much less convincing reason why the petitioner should not have failed of proper effectiveremedy of appeal. I am, therefore, of the opinion that the present case is one where it would have been a proper exercise ofdiscretion to also dismiss the petition on the ground that thepetitioners have not availed of the alternative remedy availableto them under the Customs Act [see Super Traders (supra)]. ( 58 ) IN this context I must also caution against permitting thehurdld of alternative remedy being crossed in many an instanceby the petitioner just putting forth the argument of a challengeon the ground of unconstitutionality. Of course. I accept thatthe statutory Tribunals are incompetent to decide the questionof unconstitutionality or ultra vires as they are creatures of thestatute. But then when petition is sought to be maintained onthis ground it should be a real challenge say to the validity ofsome provision of the Act. And in such, a case admission shouldalso be restricted to this limited challenge and not be allowed toencompass argument on merits. The result then would be thatif challenge of ultra vires does not prevail the petition would bedismissed without the court giving any decision on merits. Unless this course is adopted the stratagem of a sham challenge ofultra vires or invalidity may be evolved to avoid resort to alternative remedy under the statute. In the present case, even thealleged challenge to the validity of any provision to the Statuteis missing. Nor does the alleged objection of public novice of2-2-1982 having been issued by the govt. is of any avail afterthe constitution of an independent Tribunal, whereby the administrative and quasi judicial functions have been separated atthe highest and the Tribunal could give its independent interpretation to the public notice, uninfluenced by any administrativeconsiderations [see Khandelwal Metal and Engg. v. Union ofindia and others, 1983 ELT 292 (30), Para 41]. In the presentcase the challenge is only on merits and in the normal coursei would have been inclined to reject this petition on this preliminary objection. But on peculiar facts of this case I do not intend to do so. That is why I have gone into the merits of the whole matterand have given my findings accordingly. In the presentcase the challenge is only on merits and in the normal coursei would have been inclined to reject this petition on this preliminary objection. But on peculiar facts of this case I do not intend to do so. That is why I have gone into the merits of the whole matterand have given my findings accordingly. In this context I havekept in view the fact that the Division Bench entertained' thispetition in 1983 (after the Amendment Act had come into force)and did not dismiss it On that ground at that stage, Subsegently this matter was heard by learned Single Judge for days andthe matter referred to a larger Bench. Earlier to the matterbeing heard by a Division Bench, the Supreme Court though inthe first instance transferred the case to Rajasthan High Courtfor the expeditious hearing later on stayed the order by its orderdated 23-7-84 as it found that the matter was listed beforedivision Bench for regular hearing. Thereafter the Divisionbench referred it to Full Bench. We heard the whole matteron merits as well. In that view it would serve no one's purposeif we were not to decide the whole matter but were to dismissthe writ petition on the ground of alternative remedy not havingbeen availed. In my view these special circumstances disinclineme to dismiss this petition, on preliminary objection, though Imust emphasise that but for these special facts of this particularcase, I would be strongly against entertaining any petition whereparty has not availed of the alternative remedy. I would, therefore, caution against this case being treated in any way as aprecedent rather would emphasise that this court decline to entertain a writ petition unless the party has first exhausted theremedy available under the Statute'. I feel prima facie substance in the obection that thiscourt lacks territorial jurisdiction to quash an order passed atahmedabad (within the jurisdiction of Gujarat High Court)But Mr. Sen says this court has jurisdiction under Article 226 (1 A)of the Constitution as part of cause of action has arisen atdelhi for the reasons that the impugned order was received atdelhi; that one of the licence was issued at Delhi and that itsimpact was felt at Delhi and has acted large number of authorities in support thereof. I am doubtful whether such ternouscircumstances can confer jurisdiction at Delhi where the eventwhich has occassioned the filing of the petition order waspassed at Ahmedabad. I am doubtful whether such ternouscircumstances can confer jurisdiction at Delhi where the eventwhich has occassioned the filing of the petition order waspassed at Ahmedabad. But I do not propose to give any decision on this aspect as already mentioned above. We heard arguments on merits and I corner it proper in this case to dealwith all the aspects in the petition. ( 59 ) QUANTUM of redemption finethe last argument by Mr. Sen was that the redemptionfine of two crores was extremely unconscientionable andthis court should even on adverse finding on merit against thepetitioner convert it into a mere warning or at the best a tokenfine. Now Section 125 of the Customs Act empower collectorto give to the owner of the goods an option to pay in lieu ofconfiscation such fine as shall not exceed the market price ofthe goods confiscated, less in the case of imported goods theduty chargeable thereon. As mentioned above the C. I. F priceof the imported coconut oil is Rs. 1,63,67050/ -. There is nodiscussion in the Collectors order as to how and on what basisthe redemption fine of two crores has been imposed. Some inkling seems to have been suggested in the reply affidavit whereit is stated that the market value of the indigenous coconut oilat that time was Rs. 19,000/- per metric tonne with the resultthat the equivalent value of the goods would be more thanrs. 5. 7 crores and that the petitioner had made huge profit evenafter the payment of redemption fine. The petitioner, however,repudiated this assessment of value. According to them themarket value at the relevant time was Rs. 14,5001- per M. Tonne. They also claim to have undergone huge storage charges, bankinterest for a period of three months before the goods were gotreleased. The petitioner claim to have sold these goods at thatrate to M[s. Hindustan Lever etc. it is denied that the petitioners made huge profits. Counsel for the petitioner pressedus to consider various circumstances which according to himshowed the bonafide belief of the petitioners that he was importing goods validly with a view to ultimately persuading us tohold that it was not necessary to order confiscation, at all andthat a more warning or token fine would have sufficied. Counsel for the petitioner pressedus to consider various circumstances which according to himshowed the bonafide belief of the petitioners that he was importing goods validly with a view to ultimately persuading us tohold that it was not necessary to order confiscation, at all andthat a more warning or token fine would have sufficied. Now, Ido not think that it is permissible for this Court under Article226 to interfere in the quantum of fine, as this Court is notsitting as a Court of appeal. Even the Supreme Court in Indochina Steam Navigation Co. Ltd. Vs. Jasjit Singh, Addl Collector, AIR 1964 SC 114 (31), refused to interfere under Article136 of the Constitution by observing that no question of principle or law is involved. It is relevant to note that in that casegold worth Rs. 23 lakhs was illegally imported in a ship. Thecustom authorities confiscated the whole gold. it also confiscatedthe ship though gave an option to the owner of the ship to payrs. 25 lakhs in lieu thereof. The gold seized was of the valueof Rs. 23 lakhs. Fine of Rs. 25 lakhs was imposed and yetthe Supreme Court refused to interfere. M/s. South India Coirmill Poockakkal V. The Additional Collector of Customs andcentral Excise and another, 1976 SC 1527 (32) is clearly distinguishable. In that case it was found that goods were soughtto be exported contrary to the prohibition under Section II ofthe Customs Act and they thus became liable to confiscationunder Section 113 (A) of the Customs Act and the person alsobecame liable to pay penalty under Section 114 of that Act. Butas the Court found that the law on amended Section 12 offoreign Exchange Regulation Act was not very clear it reducedthe penalty imposed from Rs. 25,000 to Rs. 10,0001- while at thesame time maintaining the amount of fine in lieu of confiscationof goods. In the present case, no proceedings have been takenat all by the Collector for penalty under the comparative Section112 of the Act which deals with personal penalty for improperimportation of goods. The facts were thus totally different. Itnevertheless significantly gave a warning which need to be remembered, namely "in cases of economic offences aftd especiallyin relation to the law of Foreign Exchange no leniency in thequantum of punishment is warranted. " (Para 12 ). The facts were thus totally different. Itnevertheless significantly gave a warning which need to be remembered, namely "in cases of economic offences aftd especiallyin relation to the law of Foreign Exchange no leniency in thequantum of punishment is warranted. " (Para 12 ). ( 60 ) IN M/s. Hindustan Steel Ltd. V. The State of Orissa AIR1970 SC 253 (33), facts were that the company had suppliedbuilding material to its contractors at agreed rates. The Company did not register itself on the interpretation that it was nota dealer under the Act. The authorities underthe Act heldthat the coy was liable to pay sales tax and in addition directedpenalty to be imposed. In appeal the Supreme Court remittedthe ca. se for supplementary statement. With regard to imposition of penalty for failure to register the' Court observed thatthe liability to pay penalty does not arise merely upon proof ofdefault in registering as a dealer and that penaty will not ordinarily be imposed unless the party obliged acted deliberately indefiance of law or was guilty of conduct contimacious or dishonest or acted in conscious disregard of its obligation and thatthe authority competent impose the penalty will be Justifiedin refusing to impose penalty when there is a technical or venialbreach of the provisions of the Act. The Supreme Court heldin these circumstances of the case that the company a publicsector organisation acted in the honest belief that the companywas not a dealer, hence no case for imposition of penalty wasmade out. That case has no relevance here where what is complained is the breach of prohibtion to import items in violationof the provision of an economic legislation like the. Customsact. . ( 61 ) IN this conection one must make a distinction betweenproceedings for confiscation under Section lll (d) of the Act asin the present case and independent proceedings for penaltyunder Section 112 of the Act which have not been started againstthe petitioner. Question of bonafide belief and Mens Rea areirrelevant in proceedings under Section lll (d) of the Act, whilethey may have relevancy in proceedings for imposition of personal penalty under Section 112 of the Act, which may be described as quasi criminal. Question of bonafide belief and Mens Rea areirrelevant in proceedings under Section lll (d) of the Act, whilethey may have relevancy in proceedings for imposition of personal penalty under Section 112 of the Act, which may be described as quasi criminal. Confiscation proceedings under oldsection 167 (8) of Sea Customs Act 1878 (corresponding tosection lll (d) of the Act) provides for two kinds of penaltieswhen contraband goods are imported into or exported from India;one is confiscation of the goods which is an order in rem andthe other is a penalty on the person concerned in any suchoffence. Proceedings under the Sea Customs Act in connectionwith an article resulting in the confiscation of that article areproceedings in rem. If gold is smuggled and if is traced in thehands of any party, however, innocent, the same is liable tobe seized and confiscated (See Senpujanrai Indrasanarai Ltd. Vs. Collector of Customs and others, AIR 1958 SC 845 (34 ). ( 62 ) THE distinction between proceedings under Section 112and Section III of the Act are totally ignored by the petitioner'scounsel when various factors tending to show the bonafide beliefof the petitioner that industrial coconut oil was validly importableare pressed as aid to challenge the proceedings taken against. them under Section lll (d) of the Customs Act. But the lawmakes a very sharp distinction in proceedings under these twoprovisions. Thus whereas confiscation can be ordered irrespective of knowledge of the person in whose possession goods arefound, the imposition of penalty requires deliberate action andknowledge (See Charan Das Malhotra V. Assistant Collector ofcustoms, AIR 1968 Cal. 28 ) (35 ). Section relating to seizure,under Section 112 of the Act is independent of Section 125 (Seer. S. Kalyanaraman V. The Collector of Customs 1978 Taxlaw Review 1735x36 ). As proceedings under Section III aretaken in the interest of national economy and conservation offoreign exchange, goods having been prohibited from importationno one can be allowed to argue that he bonafide believed hecould import these goods or that he genuinely was led into amisinterpretation of Statute. These conitentions may have relevance, if at all, when question of imposing personal penaltyunder section 112 or being prosecuted under Section 135 ofthe Customs Act are being taken. Liability under Section 111of the Act is absolute. There is no scope for importing the ruleof Mens rea at all. Either goods are prohibited or not. If theyare, they are liable to be confiscated. Liability under Section 111of the Act is absolute. There is no scope for importing the ruleof Mens rea at all. Either goods are prohibited or not. If theyare, they are liable to be confiscated. No one can be permittedto make profits or take benefit by importing goods which areprohibited in the interest of national economy. No alleged ruleof literal construction of a statute can be invoked for no citizenhas a right to sabotage the national economy in enactments likethe Foreign Exchange Act (Sikri, J. in The Union of India andothers V. M/s. Rai Bahadur Shreeram Durga Prasad (P) Ltd. and others 1970 SC 1597 (37) para 13) or for that matter on thesame analogy under the Customs Act. ( 63 ) IT is indisputable that the proper implementation of theimports and Exports Act is of immense signification to thenational economy. Any loose or half hearted opening whichmay permit the provision of the Act to be violated can spelldisaster for national economy. In such sensitive and other similar legislations Parliament inevitably make the liability absolute,for not to do so would gravely harm public interest. Thus contravention of Hire Purchase and credit sale agreement was heldto be an offence even though the act was innocently done. Donovan, J. put it succinctly, 'there would be little point in enactingthat no one should breach the defences against a flood and atthe same time excusing anyone who did it innocently' (See Maxwell Interpretation of Statutes, 12th Ed. P. 127 (96 ). Similarlythe possession of a drug under Drug Regulation is an absoluteoffence. The regulation was said by Lord Parker, CJ. to be a'public welfare provision. If one considered the mischief aimedat alone, there was every reason for treating a provision suchas this as a provision imposing absolute liability (P. 129 ). ( 64 ) IN Pyarali K. Tejani V. Mahadeo Ram Chandra Dangeand others (A. I. R. 1974 SC 228) (38) the court found that thesupari was included within the meaning of food. The dealerhowever urged that he entered in good faith that there was nocyclamate is substance sold by him and he did not know saccharinwas contraband. Rejecting the plea for leniency the Courtobserved that 'it is trite law that in food offences strict liability is the rule not merely under the Indian Act but all the worldover'. . . . . . . Rejecting the plea for leniency the Courtobserved that 'it is trite law that in food offences strict liability is the rule not merely under the Indian Act but all the worldover'. . . . . . . 'the intention to commit a breach of statute neednot be shown. The breach in fact is enough. . . . . . . . Section 7casts an absolute obligation regardless of scienter, bad faith andmens rea. If you have sold any article of food contrary to anyof the sub-section of Section 7 you are guilty. There is nomore argument about if. The Court also approved the observations made in American Jurisprudence (2nd Vol. 35, page864), namely the distribution of impure or adulterated food forconsumption is an act parilous to human life and health, hence,a dangerous act, and cannot be made innocent and harmless bythe want of knowledge or by the good faith of the seller, it isthe fact itself, not the intent, that determines the guilt. ' ( 65 ) IT is also significant to note the provision like Section138a of the Customs Act which raises a presumption of culpablemental State even in any prosecution for an offence under theact which requires a culpable mental state on the part of theaccused. Thus the accused has to prove absence of culpablenature state. In that context any attempt to avoid the order ofconfiscation even when the imported goods are found to havebeen imported contrary to the prohibition under the law bybringing to aid the plea of mens rea, bonafide belief, genuineunderstanding of the import policy, are irrelevant and misconceived pleas, for the liability to confiscation on the finding ofimport being found to be' prohibited is absolute. ( 66 ) I must, therefore, dispel the assumption that even if thegoods, as in the present case, are found to have been imported,contrary to the prohibtion under the law it is discretionary onthe Collector to take any action or not. That is an impermissiblesuggestion Liability for importing prohibited goods is absolute. On it being proved that the goods have been illegally importedan order of confiscation must be passed under Section 111 (d) ofthe Act. It is only thereafter that Section 125 of the Act permits the Collector to give to the owner of the goods a-n optionto pay in lieu of confication such fine as the said officer thingsfit. On it being proved that the goods have been illegally importedan order of confiscation must be passed under Section 111 (d) ofthe Act. It is only thereafter that Section 125 of the Act permits the Collector to give to the owner of the goods a-n optionto pay in lieu of confication such fine as the said officer thingsfit. But this section does not make it obligatory on the Customsauthorities when ordering confiscation, to give an option to theowner to pay a fine in lieu of confiscation but give them adiscretion whether to do so or not. The order of confiscationwould not therefore, be bad even though it had not given thepetitioner an option to pay a fine in lieu of confiscation. Section167 (8) corresponds to Section lll (d.) of the Act while Section183 of old Act corresopnds to present Section 125 of the Act. The Supreme Court in F. N. Roy V, Collector of Customs, AIR1957 SC 648 (39) has also laid down :"resort to S. 183 of the. Sea Customs Act is not necessary at all to justify the order of confiscation madein such a case. Indeed S. 183 does not authoriseconfiscation. It assumes a confiscation authorisedby other provisions of the Sea Customs Act andprovides that on a confiscation being adjudged, anoption to pay a fine in lieu of it shall be given. " ( 67 ) AN effort by the counsel for the petitioner to arousesympathy for the petitioner by contending that as the provisionsresults in confiscation, it should be restrictly construed lawsleaves me rather cold for there no equity about tax. Thus if theperson sought to be taxed comes- within the letter of the law hemust be taxed. however, great the hardship may appear to thejudicial mind to be'. I may in this connection poiterate what wassaid by a Division Bench of this Court in Hindustan Aluminiumcorporation Ltd. V. The Superintendent Central Excise andothers, 1981 ELT 642 (40) to equate the law for imposition offax or excise duty as equivalent to penal provision is to harkback to the exploded laissez fame theory of 19th century and torefuse to accept the compulsions of 20th century Welfare Statewhich necessarily postulate the imposition of taxes and dutiesof excise and custom for carrying out its multiferious special welfare activities. ' (P. 652 ). ( 68 ) MR. ' (P. 652 ). ( 68 ) MR. Sen had in support of the bonafide belief of thepetitioner that industrial coconut oil was not a canalised itemreferred to various instances such as : (1) Order of Central Government dated 31/03/1981; (2) A consignment of industrial coconut oil imported bythe petitioner in July, 1981, which was allowed tobe imported without objection; (3) Bombay and Calcutta Customs have allowed clearanceof industrial coconut oil-May, 1981 and January,1982 against licences issued in 1979-80 and 1980-81 policies. And also some consignments cleared injanuary, 1983. ( 69 ) ON the above instances effort made to invoke Article 14is planly untenable. The more fact that some collectorate hasallowed the consignment does not mean that another Collectormust allow it to be cleared even, if he is of the view as is thepresent case that the import is illegal. Each import is a separate event and there is no scope of invoking Article 14. Suchan argument would put in jeopardy the whole policy of imports,and exports at the whim of one Collectorate. Each importerhas to meet a case put against him, he may invoke the materialpurporting to support him, but that is about all-he cannot insistthat the decision must no be of he Collecor dealing with Inscase but of some other Collector of different Port. I may inthis connection refer to coromandel Fertilisers Ltd. V. Union ofindia and others (A. I. R. 1984 SC 1772 (41 ). In that case theplea of the writ petition was that in terms of the particularnotification issued by the Government of India the petitioner wasentitled to claim exemption from the excise duty on the articlemanufactured by him which it was claimed was mixed fertilizer. The High Court however held that the petitioner was not manufacturing the) mixed fertilizer and was not entitled to claim anyexemption. The said finding was up-held in the Supreme Court. However during the course of the argument, an argument wasraised that another rival company had been given the benefit ofexemption notification for manufacturing the very same articleas was manufactured by the writ petition and therefore not togive the same benefit to the petitioner would work injusticerepelling this argument the Supreme Court observed :'mr. Setalvad made a grievance that the authorities concerned had allowed the benefit of the Notificationunder similar circumstances to a rival company. Setalvad made a grievance that the authorities concerned had allowed the benefit of the Notificationunder similar circumstances to a rival company. Ifthe grievance of the appellant is true, the appellantmay no dobut have reasons to feel sore about it. Wehave however to point out that the grievance of theappellant even if it is well founded, does not entitlethe appellant to claim the benefit of the Notification. A wrong decision in favour of any particular partydoes not entitle any other pay to claim the benefiton the basis of the wrong decision. 'the infraction alleged of Article 14 is completely unarguable, ( 70 ) I may incidentally note. that the petitioners overwhelming emphasis on the bona fide belief bsing bassd on the letter ofstc dated 25/10/1980 would need to be examined rathercritically by Appellate Tribunal to whom I intend remitting butonly on the question of redemption fine. It is to be noted thatlicences were originally issued in November, 1980, and January,1981. Two letter of authority were obtained in February, 1981and 3rd one in December, 1981. Now STC prima facia viewcould only have had, if at all any relevancy for 1980-81 policyduring the currency of policy. But the import was made in September, 1982. Could it not be said by the respondents that import was made because of the market condition. That a deliberatecalculated chance risk was taken knowing fully well that by September, 1982 industrial coconut oil had become a canalised item. But I need not pursue it any further, as the Tribunal will no doubtexamine this aspect. ( 71 ) IT should also be noted that once it is found as I have athat the goods were illegally imported, the same became liable toconfiscation. Of course the Collector has given option to payfine in lieu of confiscation. In that context it seems to me thatthe authorities have to examine various circumstances, details offacts which cannot obviouy be examined here in these proceedings. The redemption fine is in the discretion of the Collector. That is why various allegelly extenuating features which Mr. Senurges can be put forth before the authorities concerned. No doubtthe various features can be taken into account for seeing that abonafide mistake may not unduly harshly penalise or causeirreparable injury to the importer. But it seems to beequally pain that the resort to section 125 of the Act to imposefine in lieu of confiscation. Senurges can be put forth before the authorities concerned. No doubtthe various features can be taken into account for seeing that abonafide mistake may not unduly harshly penalise or causeirreparable injury to the importer. But it seems to beequally pain that the resort to section 125 of the Act to imposefine in lieu of confiscation. In that context it seems to me that'bonanza or profits for an illegal transaction of import. Some justification offered by importer may be taken into nto account for notproceeding for personal penalty under Section 112 of the Act orfor not proceeding under Section 135 of the Act against theimporter. But there would appear to be hardly any justificationfor letting an importer make monetary gain from any illegaltransaction of imports and or export. Because if apparent justification pleaded for import, which ultimately is found to be prohibted it can still result in monetary gain to the importer, theremay be serious danger and risk to the success of the whole importand export Policy with inevitable adverse economic consequencesfor the nation. The Import and Export Policy can work in thepublic interest if it was make known clearly that whatsoeverjustification are pleaded may be sometime reasonable or evenwell intended, it will be of no avail, and will not result in anymonetary gain to the imorter, once the goods are found to havebeen imported against a prohibition under the statute. The labelof bona fide belief for imortation may only he relevant for notpersonally penalising him. but he cannot be permitted to makeany profit out of illegal deal. The amount of redemption finewould and must necessarily be determined by these considerartions. I do not however wish to pursue it any further because allthese details of actual income, sale price and other expenses canonly be shown by the petitioner to the authorities concerned,who has to pass the final order. ( 72 ) AS a reult of above I would find against the petitionerand hold that the order of confiscation passed by the Collectordated 20-12-1982 was justified and in accordance with law. However as mentioned above only on the redemption fine thematter has to be remitted to the authorities under the Customact, I am no inclined to send it back to the Collector for thereason that had the petitioner availed of the remedy of appealthis matter would have been heard by the Appellate Tribunal. However as mentioned above only on the redemption fine thematter has to be remitted to the authorities under the Customact, I am no inclined to send it back to the Collector for thereason that had the petitioner availed of the remedy of appealthis matter would have been heard by the Appellate Tribunal. Iwould, in the circumstances, remit the matter to the Appellate Tribunal but only on the question of. consideration of quantum ofredemption fine. The Appellate Tribunal would hear and dispose of this matter as if it was hearing an appeal filed by thepetitioner but only on the question of quantum of redemptionfine. I having held that the order of confiscation passed by thecollector was legal, there is no question of that point or otherpoints being re-opened before the Appellate Tribunal. It will onlyhear and decide the question of quantum of redemption fine. Ofcourse, it will be open to the petitioner and the Collector toplace before the Appellate Tribunal any relevant material offacts necessary for this purpose so as to enable to decide thisquestion in accordance with law. As a result, all the contentions of the petitioners, fail, exceptfor the matter being remitted to the Appellate Tribunal on thelimited point mentioned above. The writ petition is disposed ofas above. There will be no order as to costs. S. B. WAD, J.-1 have read the judgments of Sachar andkhanna, JJ. With utmost respect, I am unable to agree withthem. I hold that the import in question was lawful and wasmade under a valid licence. The impugned show cause noticeand confiscation orders are illegal and deserve to be if set aside. Some dissent was as if anticipated by Anand, J. who had heardthe matter for 14 days. After detailing several import questionsarising in these petitions Anand, J. observed:"these are some of the questions that arise in thesepetitions and were canvassed at the trial. Theseare important, as indeed, difficult questions. Thereare decisions either way on some of these questions,while some of them represent a grey area and different and even conflicting views may be likely". With these observations, the learned Judge referred thematter to Hon'ble the Chief Justice for constitution of a largerbench. It would have been very helpful if Anand, J. was alsowith us, as he has passed a detailed referring Order. With these observations, the learned Judge referred thematter to Hon'ble the Chief Justice for constitution of a largerbench. It would have been very helpful if Anand, J. was alsowith us, as he has passed a detailed referring Order. Indeed,the statutory Rules and Order of the Punjab High Court,vol, V. as applicable to Delhi High Court, make the followingprovision in this regard. Vol. V.-Chapter 3-B-Part B-Jurisdiction of a single Judge and of Benches of the Court :rule 8-Judge or Judges who refer a case shall ordinarily sit on the Bench which considers the referrence. "the Judge or Judges of a Bench bywhom any question or case is referred shall ordinarily be members of the Division Bench or Fullbench, as the case may be, appointed to considersuch question or case. " ( 74 ). The petitioners, as an export house, had importedindustrial coconut oil on additional licences with letters of authority. It is a raw material for manufacture of soap, shampoo etc. Admittedly, "coconut oil", simplicitor, was a canalised itemof import through S. T. C. in A. M. 1980-81. The principalquestion in these petitions is whether in the relevant year1980-81 it was the policy of the Government of India to canatise import of industrial coconut oil also ? Vairious decisionsof the quasi-judicial authorities under the Act (including thecentral Government in revision) and other Government agencies connected with this policy, have taken a view that industrial oil was not canalised. Collector of Customs, Ahmedabadhas, thereafter, taken a contrary view. A serious doubt is raisedwhether the Government knew its mind. One is reminded ofa cartoon by R. K. Luxman a few years ago, in Times ofindia. It is depicted in the cartoon that a Minister is sittingin the office of the Commerce Department answering the difficulties of the trade representatives, regarding import policy fora particular year. To the much harassed and frustrated traderepresentatives the Minister tells : "patience, gentlemen, patience We have announced our policy a few days ago-give ussometime to understand it. " ( 75 ) BUT it is not only the policy-puzzle that makes thiscase unique. The other facts are also startling. On 10-9-1982petitioners' consignment of ''industrial cocondut oil" of thec. I. F. value Rs. 1,63,67,0501- arrived in Kandla Port (Gujarat ). The oil was imported from Colombo, Sri Lanka. " ( 75 ) BUT it is not only the policy-puzzle that makes thiscase unique. The other facts are also startling. On 10-9-1982petitioners' consignment of ''industrial cocondut oil" of thec. I. F. value Rs. 1,63,67,0501- arrived in Kandla Port (Gujarat ). The oil was imported from Colombo, Sri Lanka. The importwas made on the basis of the letter of authority in favour ofthe petitioners against eight licences in the name of thirdparties. The licences were twice re-validated. The chemical examiner of the government examined the conconut oil and gavea certifiacte that the oil in question was not "edible oil". Thecollector of Customs, however, did not allow the clearance ofthe consignment. A year earlier, i. e. in July, 1981 the petitioners had imported industrial coconut oil at Kandia. Thiswas cleared by the Collector of Customs for Kandia withoutany objection. Why was it that this consignment not clearedby the Collector of Customs ?1. The background : ( 76 ) A little background of this action of the Collector of Customs will clarify it. In October, 1980 M/s. Jain Shudh Vanaspati Limited, a sister concern of the petitioners, wanted toimport industrial coconut oil. The oil was to be imported on thelicences in favour of these netitioners. Thinking that under theimport policy for A. M. 1980-81 S. T. C. might be an agencyfor its import, the said M/s. J. S. V. Limited placed a requisition for industrial coconut oil on the S. T. C. In the said letterof 25-10-1980 it was written ''we wish to advise you that. weare holding industrial licence for the manufacture of soap inour factory, situated at Ghaziabad. One of the raw materialswhich is required for the manufacture of soap in our factoryis industrial coconut oil. Presently we are in need of about100 M. T. of coconut oil and will appreciate in case you are kindenough to allocate 100 M. T. of industrial coconut oil in ourfavour. The S. T. C. replied as follows, on 30th of October,1980--"subject : Import release of industrial coconut oil,we are in receipt of your leter dated 25-10-1 1980in connection with your requirement of about 100m. T. of Industrial Coconut Oil for the manufacture of soap in your factory. In this connection we would like to inform you thats. T. C. is not importing coconut, oil for manufacture of soap. Industrial Coconut Oil is not underour purview and is not canalised with us. T. of Industrial Coconut Oil for the manufacture of soap in your factory. In this connection we would like to inform you thats. T. C. is not importing coconut, oil for manufacture of soap. Industrial Coconut Oil is not underour purview and is not canalised with us. We areimporting and distributing edible oils for Vanaspati industries as well as for public distributionscheme. "central Government's order in revision ( 77 ) IT reafier the said sister concern imported industrial coconut oil C. I. P. value of nearly two crops. Collector of Customs, Bombay did not clear the consignment out confiscatedit. On payment of redemption fine of Rs. 25 lacs in lieu ofconfiscation the goods were allowed to be cleared. The saidconcern referred an appeal against the said order to the Central Board of Excise and Customs under Section 128 of thecustoms Act. The Board allowed the appeal and held that the"industrial coconut oil" was not a canalised item under theimport policy of 1980-81. This order was passed by the Boardon 23/01/1981. On 28/02/1981 Shri Takhatram, Joint Chief Controller of Imports and Exports in the officeof the Chief Controller of Imports and Exports, expressed hisdisagreement with the order of the Board in his letter to thecentral Government. In view of the said leter fro mthe officeof the Chief Controller of Imports and Exports, the Centralgovernment suo-motto took up the revision under Section 131 (3) of the Customs Act, 1962. The said concern had also independently taken up the matter with the Central Government. ( 78 ) THE contentions- of the Chief Controller of Imports andexports before the Central Government were as follows:"1. Coconut Oil specified in para 1 of Appendix (ix)of the Import Policy, 1980-81 as a canalised itemincludes industrial coconut oil also. The words 'coconut oil would include all types of coconut oilswhether edible or industrail. 2. S. T. C. has no authority to interpret the policy asinterpratation of the policy can be done by thechief Controlled of Imports and Exports only asper para 202 of the Import Policy 1980-81. 3. Collector ought not to have fixed a very nominalamount of fine in lieu of confiscation. " ( 79 ) THE counsel for J. S. V. Ltd, however contended thatit was not incumbant for an importer to necessarily consultc. C. I. and E. unless he felts any doubt. But he did not feel soand acted on his own judgment. 3. Collector ought not to have fixed a very nominalamount of fine in lieu of confiscation. " ( 79 ) THE counsel for J. S. V. Ltd, however contended thatit was not incumbant for an importer to necessarily consultc. C. I. and E. unless he felts any doubt. But he did not feel soand acted on his own judgment. That by itself cannot be heldagainst him. He urged that it was not, the intention of thegovernment to canalise import of industrial oil. In trade parlance coconut oil meant edible coconut oil. Since the canalised agency is the S. T. C. they approached the S. T. C. to findout whether the industrial grade of coconut oil was also canalised with them. It was really question of fact that theywanted to know from the S. T. C. and not as a question of interpretation of policy. On these rival contentions and on the"careful" consideration, the Central Government held "thecomodity 'coconut oil' as is comonly understood in common parlance or amongst the trading circles refers to the ediblecoconut oil. Industrial grade of coconut oil is an inferiortype. If the industrial grade of coconut oil is to be traded, it isdescribed as industrial coconut oil. On the other hand, if theordinary edible variety is traded, it is descrbe das coconut oil"the Government in revision further held: "it is to be considered that when the question is as to what is canalised, thereis no better source for getting the information than the canalising agency itself. In the case of a canalised item, if onehas to find out what is meant by the term coconut oil, no sourceis better than the biggest, trading agency i. e. thes. T. C. " The Central Government in revision, on this finding,confirmed the Appellate order of the Board and set aside theorder confiscation. The copy of bus order dated 31/03/1981 was forwarded by the Special Secretary. Government ofindia to Collector of Customs, Bombay, to the Board and thechief Controller of Imports and Exports with an andorsement"with reference to Shri Takhat Ram's O. C. No. XPC/3/11/80/5790 dated 20/02/1981. " ( 80 ) I have quoted the order of the Central Government insome details because, inspite of the ruling of the Central Government itself, the question regarding the policy an dthe lawon the point, was debated and disputed during the course ofthe arguments on behalf of the Central Government. " ( 80 ) I have quoted the order of the Central Government insome details because, inspite of the ruling of the Central Government itself, the question regarding the policy an dthe lawon the point, was debated and disputed during the course ofthe arguments on behalf of the Central Government. The orderof the Central Government dated 31/03/1981 was actedupon by the Collector of Customs. Bombay when he clered importation of industrial coconut oil imported by the present petitioners in May, 1981 without any objection. So also the Collector of Customs for Kndl permitted importion of industrilcoconut oil in July, 1981. It must be noted the these importsin May and July, 1981 were during the subsequent year viz. A. M. 1981-82 where industril oil had been expressly made enalised item. . ( 81 ) ORDER of the Special Bench of Board of Excise andcustoms:in regard to the import policy A. M. 1980-81 and particularly in regard to another oil namely 'palm oil' conflictingdisions were taken by Collector of Madras, Cochin and Bombay. The specific question was whether "palm stearin" is covered by the entry "palm oil, all types". If is was so covered privateimport was not permissible as "palm oil, all types," as canalisedthrough the S. T. C. in the relevant year. It was an agreed position that 'palm stearin", under the law in force, could not beused for edible purposes. A special bench of the Board of Exciseand Customs was constituted under Sections 120 and 130 of thecustoms Act, 1963 to resolve this conflict. On behalf of theimporters several public notices between 7-1-1973 to 2-12-1978were cited to show that the policy of the Government all alonghad been to regulate importation of edible oil only. The Boardnoted that these notices were of an earlier period but it held"it may be true that the policy during the particular period doesnot necessarily have the binding effect on the subject policyperiod. But the Board observes that in this case the position issomewhat different inasmuch there has been numerous changesin the policy over a considerable period, sometime excluding avariety, another it time including the same or other varieties,but all with a view directed towards regulating the flow of edibleoil into the country. There is, therefore, a reasonable inferencethat the provisions in Appendix (9) are concerned with theedible variety of oil only", (emphasis supplied ). There is, therefore, a reasonable inferencethat the provisions in Appendix (9) are concerned with theedible variety of oil only", (emphasis supplied ). The Board alsoheld that so far as the decision of the Government of India onthe classification of palmolein for custom purposes is concerned, there is no doubt that the decision is binding on thecustoms authorities. The intention of the government to includepalmclein palm seeds in the entry "palm oil. all types" makesit clear that it was not the intention to include "palm stearin"in Appendix-9. The Board also held (on the basis of the evidence led before it) that there has been sufficient scope for confusion about the true meaning of the expression "palm oil, alltypes. includin palmolein" and even the different Customshouses were following different practices. On these groundsthe Board held that the goods in all these cases shouldbe treated as raw materials not canalised or prohibited. Theorder was pronounced by the Board on 28/05/1982. It maybe noted thathat the decision of the Central Government in revision under Section 131 (3) of the Customs Act dated 31-3-1981holding that the entry coconut oil, did not include industrialcoconut oil, was also brought to the notice of the Special Benchof the Board. Directions from the office of Chief Controller, Exports andimports: ( 82 ) INSPITE of the decision of the Central Government andthe Special Bench of the Board, the Joint Chief Controller ofimports and Exports (Shri Takhat Ram, on whose letter thecentral Government had exercised the suo moto power in revision) wrote a confidential D. O. to Collectors of Customs atbombay, Calcutta, Madras and Cochin to report import of coconut oil both edible and non-edible with full details before theclearance. He also informed them that import of coconut oil bothedible and non-edible was canalised through S. T. C. The confidential D. O. was written on 4-9-1982. After the petitionersgoods arrived in Kandla Port the Collector sent a telegram on5-10-1982 to the Chief Controller of Imports and Exports. Newdelhi, informing that the petitioners' consignment had arrived. On 11-10-1982, a letter was sent by Deputy Chief Controllerof Import and Export for CCIande, to Collector for Kandia. ""you are also requested to intimate the details of importmade by M/s. Jain Exports, to us, so that we canshow to the senior officers. It is also requested thatthe clearance of the goods should not be allowed,without getting prior clearance from this office". ""you are also requested to intimate the details of importmade by M/s. Jain Exports, to us, so that we canshow to the senior officers. It is also requested thatthe clearance of the goods should not be allowed,without getting prior clearance from this office". The Deputy Chief Controller also sent a copy of the letterof Shri Takhat Ram, Joint Chief Controller of Imports andexports addressed to Collectors of Customs. Bombay, Calcutta,madras and Cochin. On 12-10-1982, the Collector of Customs. Ahmedabad wrote a letter to the Director of Customs. Newdelhi requesting for final instructions in the matter. The letterreferred to the fact that the photostat copies of the documentssubmitted by the importer (petitioners) were already sent to thedirector on 8-10-1982. The Collector, however, pointed outthat neither his office nor Kandla office had received the copyof the D. O. letter of Shri Takat Ram, Joint Chief Controllerof Imports and Exports dated 4-9-1982. The Collector, therefore, requested the Director of Customs to take up the question of ''obtaining prior concurrence" from the Chief Controllerof Imports and Exports direct. On this letter, the Director ofcustoms on 25-10-1982 wrote to Shri Takhat Ram, Joint Chiefcontroller of Imports and Exports, New Delhi. He referred tothe confidential D. O. letter dated 4-9-1982 issued by the saidjoint Chief Controller of Imports and Exports. In the saidletter he further wrote, "it is, therefore, not clear whether saidimport (of M/s. J. Exports (P) Ltd. , New Delhi) would be covered by Shri re-validated additional licences produced by theimporter who has contended that the import policy of 1980-81,against which these licences were issued would apply to theseimports. A copy of the letter submitted by the importer explaining their view points is also enclosed. It is also not clear whether in revalidating the licences the fact that some of the itemslike coconut oil, etc. had since been canalised, have been takeninto account. As the issue is not free from doubt and as youroffice has already advised the Customs Houses to furnish details of such import before Chief Controller of Imports and Exports for such action as considered necessary at their end andalso for issue of appropriate advice to the Collector of Customsand Central Excise, Ahemdabad, as to the course of action regarding eligibility of the said import. Reference has also beenmade in the Chief Controller of Imports and Exports letterdated 4-9-1982 to certain reports that huge quantity of coconutoil are necessary underway from Singapore and Philippines. Theimporter in this case, however, has claimed the goods to be ofsri Lanka origin and has thereby claimed clearance at concessional rate of doty under notification No. 431-013. dt. 1-11-1976. The Collector has been asked to fully satisfy himself asto the origin of goods having regard to the requirements of thebangkok. Agreement on the basis of such other enquiries asconsidered necessary, before permitting clearance. Since the goodshave already arrived at Kandla Port and are awaiting clearance,the matter may be treated as "most Urgent". After this letter of25-10-1982, the Collector of Customs and Central Excise,ahmedabad, issued a show cause notice to the petitioners on25-11-1982. The petitioners replied to this notice on 30-11-1982. On 17120-12-1982 the impugned order was passed by thecollector after personal hearing to the petitioners. The impugned order of Collector of Customs, Ahmedabad : ( 83 ) IN his order, the Collector has noted that the Government Chemical Analyser at Kandla had certified that the oilin question did not conform to the requirement of "edibleoil". He noted the order of the Board in appeal dt 23-1-1981. but did not note or deal with the order of the Centralgovernment in revision dated 31-3-1981, a copy of which wa. sannexed by the petitioners to his reply to the show causenotice. The Collector also completely ignored the decision ofspecial Bench of the Central Board dated 28-5-1982 in which thebench had held that Appendix 9 covers only edible oil andthat the consistent policy of the Government of India was toregulate import of edible oil only. The Collector noted the tact. that from the same port at Kandla similar consignment of thepetitioners was cleared in July, 1981 but did not deal with thisaspect at all. The Collector held that according to para 202 ofthe import policy A. M. 1980-81 and para 211 of the Importpolicy A. M. 1981-82 it is the Chief Controller of Imports andexports who is the proper authority to interpret import policyand the opinion of any other authority was not binding on himor in law. He held that the provisions of the said two parasof the said Import Policy was a statutory provision. He held that the provisions of the said two parasof the said Import Policy was a statutory provision. The letterof the S. T. C. "was not sustainable in the light of the law relating to the interpretation of statute cited above". The Colleterthen relied upon the Indian Standard Specification for coconutoil. 11nd revision, I. S. 454-1968 and re-affirmed in 1976. Theotherscollector further went on to say, that I. S. Specification waslaid down by the Oil and Oil Seeds Sessional Committee comprised of eminent persons and therefore deserved acceptance. Herelied upon AIR 1963 S. C. page 791, 1980 ELT 679 Delhi and 1980 ELT 468 Madras. The Collector then held :"in view of the above, I am of the firm opinion thatthe word "coconut oil" as it appeared in AM1980-81 import policy Appendix 9 para 51 wouldcover refined industrial coconut oil whether it isedible or not. " The Collector then stated that theimport policy AM 1981-82 wherein edible andnon-edible varieties were specifically canalised goesto prove that non-edible variety was canalisedduring 1980-81 as AM 1981-82. "this amplification was brought to make it abundantly clear andto remove doubts, if any, that oil whether edibleor not can be imported only by canalised agencies. To interpret, that this clarification or amplification automatically imply, a contrary intepretation is uncalled for, and not sustainable in thelight of the law of the interpretation of statute. "he thereafter examined different licences. The first licencewas dated 4-11-1980 revalidated on 28-6-1982 for a furtherperiod of six months. The Collector held that according to theconditions for revalidation, import policy for 1982-83, inwhich non-edible oil was covered by Appendix 9 and was alsocanalised, was applicable. As regards the additional licencedated 23-1-1981 revalidation on 23-1-19p2 for a period of sixmonths till 23-7-1982, the Collector held that the shipmentwas subject to the condition in para 222 (1), (2) and (4) ofimports Policy 1981-82. He also held that the restriction contained in para 185 (3) of Import Policy 1981-82 shallapply. 2 The Collector also held that the public noticeno. ll/itc (PL)/82 dated 25-2-1982 was a clarificatory noticeto the effect that the conditions of import of the subsequent import policy were applicable to all imports of O. G. L. Items byexport Houses. He further held that the said public notice hada restrospective effect from 3-4-1981 when import policy foram 1981-82 was announced. ll/itc (PL)/82 dated 25-2-1982 was a clarificatory noticeto the effect that the conditions of import of the subsequent import policy were applicable to all imports of O. G. L. Items byexport Houses. He further held that the said public notice hada restrospective effect from 3-4-1981 when import policy foram 1981-82 was announced. He equated the public noticewith the statutory provisions and on the basis of the rulingsof the Supreme Court (AIR 1969, S. C. 1114) applicable to thestatutory powers, further held that the retrospective application of the public notice was valid. Similar reasoning was employed by the Colector in regard to other six licences. He heldthat the importation of oil on all the licences was beyond thepermissible time limit and were not covered by the import licences. He then held that importation was in violation of section 30 of the Imports and Exports (Control) Order, 1947 asamended and read with Section 11 of the Customs Act, 1962. The Collector did not coasider whether on the facts and circumstances of the case the goods should be confiscated or notbut straight away passed the order of confiscation of the goods. He imposed a fine of Rs. 2 crores and 3 crores respectively holding that the provisions of law were "deliberately flouted" bythe petitioner. He, however, did not impost any personal fine. The Collector further held that if the importer exercised hisoption to redeem the goods on payment of fine imposed theycould clear the goods on payment of duty at preferential rateapplicable to goods of Sri Lanka origin. The Collector sentthe copy of the order to Shri Takhat Ram, Joint Chief Controller of Imports and Exports, New Delhi. ( 84 ) TO complete the naration, the petitioner paid the redemption fine and got the goods released. This he did duringthe pendency of the writ petition in this Court, as the staywas refused by this Court. The admitting Bench on 1 8/01/1983 directed that the writ petition should be listedon 21/02/1983 as No. 1 subject to part-heard. It is. pointed out by the petitioner that on 12/01/1983 i. e. after the import policy of 1982-83 was already annonunced, thecollector of Customs at Calcutta, allowed M/s. Jayant Oilmills Pvt. Ltd. , Bombay and Metro Exporters, Bombay to clearindustrial coconut oil of 5000 MT. each without any show causenotice or any punitive or penal action. It is. pointed out by the petitioner that on 12/01/1983 i. e. after the import policy of 1982-83 was already annonunced, thecollector of Customs at Calcutta, allowed M/s. Jayant Oilmills Pvt. Ltd. , Bombay and Metro Exporters, Bombay to clearindustrial coconut oil of 5000 MT. each without any show causenotice or any punitive or penal action. This fact was notdenied by the counsel for the respondents during the hearing. ( 85 ) -SCOPE of enquiry by this Court. Before going to the various grounds of challenge raised bythe petitioner, the scope of our enquiry must be clearly delineated. The order of the Controller in question must be treatedabsolutely in the sense that it must stand or fall on its own. In early fifties the Supreme Court laid-down in Commissionerof Police Bombay v. Gordhandas Bhanji ( AIR 1952 SC 16 (42) (at p. 38) that :"public orders publicly made. in exercise of a statutoryauthority cannot be construed in the light of explanations subsequently given by the officer makingthe order of what he meant, or of what was in hismind. or what he intended to do. Public ordersmade by public authorities are meant to. have publiceffect and are intended to affect the acting andconduct of those to whom they are addressed andmust be construed objectively with reference to thelanguage used in the order itself. " ( 86 ) THE same principle was followed by the Supreme Courtin Mohinder Singh Gill's case ( AIR 1978 SC 851 ) (43 ). Validityof public order has to be judged on the basis of the reasonsgiven by the authority concerned and not by an external aid. ( 87 ) FURTHER, we are not sitting as a Court of Appeal overthe order of the Collector of Customs. We cannot by external aidor reasoning or otherwise make up the deficiencies and infirmities. Certiorari writ limits our powers to quash the order ifit cannot be sustained on the basis of the evidence and reasoning of the Tribunal and to pass consequential directions. Ifengineers certify that a house is so delapidated as to be unlitfor human habitation, we cannot by judicial reasoning say thatit is not so or construct a new house in its place. ( 88 ) III-PRELIMINARY objections :the respondents have raised two preliminary objections. Ifengineers certify that a house is so delapidated as to be unlitfor human habitation, we cannot by judicial reasoning say thatit is not so or construct a new house in its place. ( 88 ) III-PRELIMINARY objections :the respondents have raised two preliminary objections. It is submitted that the petitioner has an elective alternativeremedy under the Customs Act, particularly with regard to thefact that the Act has now established that is called Customsexcise and Gold Control Tribunal. It is claimed that by resourting to the writ petition, the petitioner is depriving the respondent the statutory right of justifying the order on other ground. It is then submitted that this Court has no territorial jurisdiction as the importation of oil was at Kandala (Gujarat ). Iagree with Sachar, J. and Khanna J. that these preliminary objections should be over-ruled. I have of course, my additionalreasons for doing so. I will deal with the at a later stage. ( 89 ) IV-MERITS:on merits several contentions were raised by the netitionerand by the respondents. I will first deal with those contentionsof the petitioner, factual position of which was not contestedor even demurred by the counsel for the respondents. Mr. Rana, counsel for the petitioner has submitted that the Collectorhas committed a grave error of law in completely ignoring theorder of the Central Government in revision passed on 31stof March, 1981 and also the order of the Social Bench of thecentral Board of Excise dated 28/05/1983. The error,according to the petitioner, is an eror of law, apparent onthe face of the record and going to the root of the jurisdiction of the Collector to decide the matter. Before geing intothis submission we must examine the nature and the importof the said two orders. The order of the Central Government was passed under the old Section 131 (3) of the Customsact. This is a revisional power. The Central Governmenthad a final power under the Act to examine legality, proprietyand compliance of policy by all the customs authoritres subordinate to it under the Act. The Act gives finality to the decision of the Central Government. Since the Central Governmentitself lays down the policy and regulates import and exportof the cojntry, it must be presumed that the Central Government's decision correctly reflects the policy and national considerations involved in the implementation of export and importpolicy. The Act gives finality to the decision of the Central Government. Since the Central Governmentitself lays down the policy and regulates import and exportof the cojntry, it must be presumed that the Central Government's decision correctly reflects the policy and national considerations involved in the implementation of export and importpolicy. All import and export policy statements published inthe form of public notice every year expressly state that the tradeand business interest and consulted and taken into considerationwhile framing the policy. It is, therefore, to be presumedthat the decision of the Central Government in revision ochoesthe trade practices and understanding. The Customs Actprovides Central Government as a quasi Judicial appex Tribunal. The intention of the Legislature in this regard is quite clear. The Central Government in its executive function is free to laydown any policy as regards imports and exports. Central Government can also make policy changes even during the particular import export year. But once a dispute regarding thepolicy or its implementation is raised, finality dues not restwith Central Government acting in its executive capacity butcentral Government in its quasi-judiciat capacity. So longas the decision is not set aside by High Court or by Supremecourt, all subordinate Tribunals in the hierarchy are bound tofollow it. In this case the Central Government did. not feelit necessary to get it judicially tested before the Supreme Court. It is a disobedience of the statute to completely ignore the decision of the Central Government in revision. The powers ofthe Collector and the duty to act judicially are creatures of thestatute. Would the Collector be able to ignore the directionof the Central Government acting in his executive capacity ?does the Act of Parliament, while recognising the necessity ofresolving disputes under the Act by a judicial method and alsocreating hierarchy of the quasi-judicial Tribunals intend that thetribunals at the lower ladder should ignore the decision of thetribunal at the appex ? The frontiers of public law are nowso extended as to create a legal duty for the administrationto act fairly. Here is a quasi-judicial Tribunal throwing allcannons of statutory, administrative and Judicial discipline towinds. ( 90 ) THERE is another interesting angle to this question. Thejoint Chief Controller, Export and Imports, Shri Takhat Ram,who was not satisfied with the decision of the Board (holdingthat industrial coconut oil was not covered by Appendix-9 ofthe Customs Act) took up the matter with the Central Government. ( 90 ) THERE is another interesting angle to this question. Thejoint Chief Controller, Export and Imports, Shri Takhat Ram,who was not satisfied with the decision of the Board (holdingthat industrial coconut oil was not covered by Appendix-9 ofthe Customs Act) took up the matter with the Central Government. The Central Government in revision has noted all thecontentions and objections of the Joint Controller of Importsand Experts. They were expressly over-ruled by the Centralgovernment. Can it not be said that after such a full hearingand debate, of the point of view of Central Government onpolicy, law and national interest in export and import, all doubtswere set at rest. Strangely enough the Collector obedientlyfollowed the subsequent administrative instructions issued bythe Joint Controller and passed an order contrary to superiorjudicial Tribunals. What is true about the order of the Centralgovernment is equally true about the order of the Specialbench of the Board. Why was the Special Board constituted ?because, there was a conflict of decisions amongst three different Collectors. The Special Bench clarified the law and thepolicy. Constituting a larger Bench and a Special Bench is awell-known judicial method to create constency and disciplinein interpretation of law and administration of justice. Willit be possible to say that after the Special Bench had clarifiedboth the policy and the law. any Collector of Customs could takeadecision in conflict with the policy and the law so decided. Theorder of the Central Government in revision and the Specialbench of the Board are orders/judgments in rem. They are theorder laying down law and policy for all for future cases. ( 91 ) THE counsel for the respondents submitted that theprinciples of estoppel and aes judicata are not applicable. He hasrelied upon Abdul Gafoor's case (1961 A. C. 584) in support ofhis submission. He has also submitted that a Collector ofcustoms is not bound to follow a decision of the Central Government in revision or of the Special Bench of the Board. Thecounsel for the petitioner has, however, submitted that his objection was not properly answered by the respondents. According to him, there wiil be chaos and disaster in the administration, (and particularly the administration of justice through quasijudicial Tribunals) if the subordinate Tribunals are left freel todisregard the judgments and orders of superior Tribunal. Thecounsel for the petitioner has, however, submitted that his objection was not properly answered by the respondents. According to him, there wiil be chaos and disaster in the administration, (and particularly the administration of justice through quasijudicial Tribunals) if the subordinate Tribunals are left freel todisregard the judgments and orders of superior Tribunal. Thecounsel then submitted that the orders of the Tribunals particularly the appex Tribunals are pronounced' and published forthe benefit of the citizens engaged in trade and business also. The traders and the businessmen shape and adjust their tradingactivities legitimately believing that the appex authorities alonelay down the policy and law and the lower authorities implementthem. ( 92 ) TO my mind the principles of estoppel and res judicatare not directly involved in the present case. But apart from thisi do not agree that the nature of subject matters in taxationmatters and customs matters are alike. The non-application ofdoctrine of estoppel and res judicata in tax matters is based onanother principle of public law. Assessment for each year isdistinct and separate for the reason that the Finance Act whichalone supports the assessment, is sanctioned only fora particularyear by the Legislature. There can be no taxation without anauthority of law. That, the assessment in tax matters are different in different years, is an incidence of the Finance Act passedeach year. It is thus a requirement of the Statute and not anyprinciple of equity. So also the principle of estoppel does notoperate against the statute and hence has no applicaion in taxation cases. In the other hand, within the broad framework ofthe Customs Act and the statutory control orders, Governmentis free to lay down the export and import policy and benefits orburdens can be carried forward to subsequent years unless thereis a legal bar. Import policy statements, published every yearin the form of public notice, are non-statutory in character andare nothing more than administrative instructions. CASE LAW ON ESTOPPEL and RES JUDICATA ( 93 ) EVEN in tax matters principles of equity akin to estoppeland res judicata, are made applicable on the ground of naturaljustice, finality of decision, avoidable inconvenience and harassment to an assessee. CASE LAW ON ESTOPPEL and RES JUDICATA ( 93 ) EVEN in tax matters principles of equity akin to estoppeland res judicata, are made applicable on the ground of naturaljustice, finality of decision, avoidable inconvenience and harassment to an assessee. In Sankaralinga Nader v. Commissioner of Income Tax (ILR 53madras 420 (44), the Full Bench of the Madras High Courtobserved :"if fresh facts come to light which on an investigationwould entitle the Income-tax Officer to come to adifferent conclusion from that of his predecessor, wethink he is entitled to reopen the question. But ifthere are no fresh facts it is difficult to see how hecan arbitrarily go behind the facts of finding of hispredecessor. The same principles of natural justiceor judicial dealing, which Courts impose uponincome-tax Officers, would prevent them capriciouslysetting aside the orders of their predecessors based onenquiry. ( 94 ) CHAGLA, C. J. writing an opinion for the Division Benchof the Bombay High Court in N. A. Shah and Co. v. Commissioner or Income-tax (1956-30 ITR 618x45) posed the question "can it be said that in the subsequent year when that veryquestion arises it is open to the Income-tax Authorities at theirsweet will to come to a conclusion which is contrary to the onearrived at in the earlier assessment"? The learned Judge thenobserved :"even though the principle of res judicata may not apply,even though there may be no estoppel by record,it is very desirable that there should be finality andcertainty in all litigations including litigations arisingout of Income-tax Act. It is not a very satisfactorything that an assessee should feel a grievance thatone Tribunal came to one conclusion and anothertribunal came to a different conclusion and thatthe two conclusions are entirety inconsistentwith one another. Therefore the second Tribunalmust be satisfied that the circumstances are such asto justify it in departing from the ordinary principleswhich apply to all Tribunals to try and give as faras possible a finality and a conclusiveness to thedecision arrived at. We should also like to lay downa further limitation upon the power of the Tribunalto revise the decision given earlier by that verytribunal. The effect of revising this decision shouldnot lead to injustice and the court must always beanxious to avoid in justice being done to theassessee". ( 95 ) THESE dicta are subsequently followed in number ofdecisions of the superior courts. The effect of revising this decision shouldnot lead to injustice and the court must always beanxious to avoid in justice being done to theassessee". ( 95 ) THESE dicta are subsequently followed in number ofdecisions of the superior courts. The Supreme Court has alsohold that finding of fact in one year would be "good and cogentevidence of the nature of the transaction" in subsequent years (Dalhousie Investment Trust Co. v. Commissioner of Income Tax. (1968-68 ITR 487 (46), (SC ). In Investment Ltd. v. Commissioner of Income Tax. (1970- 77 ITR 533 SC (47 ). The respondent has, however, relied upon Abdul Gafoor's case (1961 Appeal Cases 584) (48 ). In J. K. Synthetics Ltd. andanother v. Union of India and others (1981 ELT 328 Del) (49 ). Rangnathan, J. (with Prakash Narain, CJ.) has reviewed Abdulgafoor' case and the other English decisions. He has also considered the Supreme Court decisions mentioned above. He hasthen adverted to the High Court decisions. After reviewing allthe decisions, he has come to a conclusion thar there is a distinctline of authority in India enunciating this limitation on departmental action in tax matters. J. K. Synthetics' case concernedwith payment of Excise Duty Ranghanathan, J. has further held:"the matter is looked at from this larger perspective,we think it will be clear that there can be only oneanswer to this question viz. that the departmentshould not be permitted to take different standsunless there is any good or cogent reason for thechange in view. For example, if the facts are different or if further and fresh facts are brought onrecord or if the process of manufacture has changedor if the relevant entries in the tariff have undergonea modification or if, subsequent to the earlier decision there has been the pronouncement of a Highcourt or the Supreme Court which necessitates reconsideration of the issue, it can hardly be doubtedthat the department; can take a different view andhave the matter agitated right upto the Supremecour, if necessary. But when there is no change atall and when the position is exactly the same, legallyand factually, as it was on the earlier occasion thenwe think that the department should be restrainedfrom capriciously changing its stand and inflictingunnecessary proceedings and hardship upon assessees"the learned Judge further observed :thus, where the original decision is taken by an assessing authority, it is open to the higher authorities,who may consider it a wrong decision, to exercisetheir powers of revision or review under the Act andto set out the correct position. But if this has notbeen done or. if in a revisional proceeding for anearlier year, the ultimate revisional authority hastaken a view in favour of the assessees, fresh proceedings cannot be launched against the assesseemerely because the department later thinks that theprevious view is untenable or that the matter shouldbe agitated and a fresh decision obtained". "if eventually the High Court or Supreme Court approvesits views, that would enable the department to applythese views even in cases where a different view wastaken earlier by it. The rule will thus notreally prejudice the interests of the department inany way. It is indeed a harmonious reconciliationbetween two well-established positions : on the onehand. that the matter of levy of tax in respect of eachoccasion is a separate and independent subject matterand that. generally speaking, there can be no reasonwhy the authorities as well as the. asscssee couldnot approach the matter from different stand pointson different occasions and the practical necessity,on the other, that there should be a finality to alllitigation even in tax matters and that it should notbe open to the department to change the pattern ofassessments at its whim and an assessec to avoidable inconvenience and harassment". Following J. K. Synthetics, the new Appellate Tribunal underthe Act has quashed the order of the Collector for ignoring theorders of Central Government in revision-Sec Mukand Enggworks vs. Collector of Central Excise (1983 EI. T 816x50 ). With respect I agree that this is the correct enunciationof law on this question. ( 97 ) BUT even the authorities cited by the respondents do notsubscribe to a proposition that the Collector can completelyignore the orders of the apex Tribunals where their orders havebecome final. The Collector has simply refused to look at them. He has not even attempted to distinguish them, (Assuming thatthe Collector could do so ). ( 97 ) BUT even the authorities cited by the respondents do notsubscribe to a proposition that the Collector can completelyignore the orders of the apex Tribunals where their orders havebecome final. The Collector has simply refused to look at them. He has not even attempted to distinguish them, (Assuming thatthe Collector could do so ). Even after accepting the order of thecentral Government he was still free-to examine the question,of fact, after taking appropriate evidence as to whether the imported oil was, as a matter of fact an "edible oil". But he didnot follow this course. The Collector has distinguished thedecision of the Board dated 23/01/1981 (which was confirmed by the Central Government in revision ). The Collectorhas refused to follow it on the untenable ground that the Boardhas not noticed some of the decisions of higher courts. It is anelementary judicial norm, not to ignore the dectsions of thesuperior authorities on this ground. If there are errors of lawand the decisions of the superior courts are not considerably anintermediate superior authority, the Statute provides for the rectificationof mistakes by the appex Tribunal. This principle ofjudicial administration is recognised by the Act since it hascreated hierarchy of Tribunals under the Customs Act ( 98 ) BUT principle of estoppel, res judicata or stare decisionsare old and traditional methods of ensuring justice and fair playin their application to administrative law. The higher judiciary inthe democratic countries, where rule of law prevails, have now invented more direct and efficious methods of securing fair playin the administration. Extension of the principle of promissory estoppel in public law. the new contents put in the doctrineof locus standi; the extended frontiers of natural justice principleand the public interest litigation are efforts in this direction. This is the recent achievement of the Supreme Court throughseveral land mark decisions. Res judicata and estoppel arelike traditional and long winding routes to Mount Everest. Thenew developments provide more direct and ensilv accessableroutes. Testing in the light of these new illuminating principlesof public law. it must be held that the action of the Collectorignoring the decisions of the Central Government and the Specialbench of the Board affect the very roots of his jurisdiction andis patently arbitrary. ( 99 ) COUNSEL for the respondent has relied on the decision or. Supreme Court- liberty Oil Mills and others v. Union of India andothers [ (1984) 3 SCC14651. ( 99 ) COUNSEL for the respondent has relied on the decision or. Supreme Court- liberty Oil Mills and others v. Union of India andothers [ (1984) 3 SCC14651. In support of his submission thatthe Collector is not bound to follow the decision of the Centralgovernment in revision. The. decision concerns only withinterim orders under clause 8a and 88 (abavance orders ). Arvindexports and Jayanti Mills had succeeded in appeal and reviewbefore tribunals under the Customs Act. Argument of thecentral Government was that those decisions were not bindingon the authorities functioning under the Imports (Control)Order. The Supreme Court held, "we consider that this is nota. matter for the Court to decide at this stage in a petition underarticle 226 of the Constitution or under Article 32 of theconstitution questioning an ad interim order under clause 88. : (cmphasis supplied ). " But even on facts the position in thetwo cases is different. In Liberty case the Central Governmentwas distinguishing the decisions of subordinate tribunals onquestion of law. In our case, the lowest of the quasi-judicialtribunal-a Collector-completely ignored the decision of theapex Tribunal-Central Government in revision. The decisiondoes not support the respondent. ( 100 ) WE have seen that on no judicial` principle can theaction ofhe Collector (in ignoring the decision of the Centralgovernment and special bench of the Board), be upheld in law. Let us now examine the administrative and the policy aspect ofthe matter. Under the scheme of the Act it is to be presumedthat the Central Government while exercising the revisional powerunder section 131 of the Act knows the policy, the law and thetrade practices. Its function is to remove the doubts and inconsistencies in the implementation of the policy. In Liberty Oilmills' case the Supreme Court has held that courts do not possessthe expertise and are consequently incompetent to pass judgments on the appropriateness or the adequacy of a particularimport policy. It is also pointed out that in framing Import andexport Policy the Government considers the requirements of International and Internal Trade, Agricultural and Industrial Development. Plans, monetary and financial strategies. If this is theprescription for the superior courts with constitutional powers, canit be said with any logic or reason that a subordinate administrative tribunal can completely by pass the order of the Centralgovernment in the revision ? Plans, monetary and financial strategies. If this is theprescription for the superior courts with constitutional powers, canit be said with any logic or reason that a subordinate administrative tribunal can completely by pass the order of the Centralgovernment in the revision ? What is the expertise of such asubordinate tribunal, in these vital policy considerations, ascompared to the Central Government ?the disastrous effects ofthe respondent's submission can, be further illustrated by anexample. . Suppose in the present case, the Central-Governmentinexercise of its. Revisional Powers had held that industrial oilwas canalised through STC. Could it be said. that in spite ofthis decision, the Collectors of Customs were free to hold that theindustrial oil was not canalised and to permit clearance of theimports ? Can it be said that the decision of the Central Government in revision is binding on the subordinate tribunals onlywhen it favours the government but not when it is against it? Sucha submission would be patently violative of Article 14 of theconstitution. There is one law, both for the Government andthe citizens. If the policy of the Government is to be consistentlyapplied it must be held that the subordinate tribunals cannottake liberty with the decision of the apex tribunal and float it. We have noted that the special bench of the Board in its orderhad held that all changes in the Import Policy since 1973 were"directed towards regulating the flow of edibis oil into thecountry. There is, therefore, reasonable inference that the provision in Appendix IX are concerned with the edible variety ofoil only. " Do we assume, that the Board did not understand thecorrect policy, or the interpretation of Appendix IX, while thecollector of Customs understood them correctly ? If the submission of the respondent is accepted it will completely undermine the administrative authority of the Central Government inthis regard. It is not even in the interest of Central Governmentto make such a submission. . ( 101 ) BROTHER Sachar has observed that the Central Government in revision has misdirected itself because it did not correctly, appreciate as to why words "all type" were subsequently addedto the original entry "palm Oil". Brother Khanna has held thatshri Abrol, Additional Secretary, who passed the order for thecentral Government, was "over zealous" to hold in favour ofthe petitioner by providing ostensible legal competence to Centralgovernment's order in revision. According to the learned Judge. Brother Khanna has held thatshri Abrol, Additional Secretary, who passed the order for thecentral Government, was "over zealous" to hold in favour ofthe petitioner by providing ostensible legal competence to Centralgovernment's order in revision. According to the learned Judge. the revisional power under section 131 (3) can be used only to"annual" or "modify" the order of the Board but not to upholdor affirm it. The learned Judge has also referred to the factthat Shri Abrol, Additional Secretray, passed the said order, on thelast day of his retirement. It is difficult for me to agree witheither of my brethren. ( 102 ) IN Bhopal Sugar Industres v. Income Tax Officer, (AIR1961 S. C. 182 at p. 185) the Supreme Court has ruled on thecompetence of the High Court in a similar situation. Judicialcommissioner of Bhopal, in that case,had upheld the order ofthe Income Tax Officer on the ground that the order of the Appellate Tribunal (which the officer had refused to follow) was illegal. The Supreme Court found that the order of the Tribunalhad become final. The Court then held :"the Judicial Commissioner was not sitting in appealover the Tribunal and we do not think, in the circumstances of the case, it is open to him to say that theorder of the Tribunal was wrong and, therefore, therewas no injustice in disregarding that order. "the Court further held :"such refusal (by the Officer) is in effect a denial of justiceand is further more destructive of one of the basicprinciples in administration of justice based as it isin this country on heirarchy of courts. . . . . theresult would be chaos in the administration of justice. " ( 103 ) FURTHER, Section 131 (3) is a general revisional powerexcept that the exercise is suo moto. It is a judicial power. Asine qua non of judicial determination is, it is neutralabout the result. To restrict the power to "annul" or "modify"to take away the essence of a judicial power. There is nothing odd in passing an order on the last day. Shri Sen, the learned Counsel for the petitioner has pointed out that number ofjudgments are delivered in the Supreme Court on the last dayof the retirement of a Judge. ( 104 ) NATURAL justice:the second submission of the petitioner is that the Collector's order is in breach of the principle of natural justice and,therefore, a nullity. Shri Sen, the learned Counsel for the petitioner has pointed out that number ofjudgments are delivered in the Supreme Court on the last dayof the retirement of a Judge. ( 104 ) NATURAL justice:the second submission of the petitioner is that the Collector's order is in breach of the principle of natural justice and,therefore, a nullity. The submission is based on two facts. Thecollector has relied upon the ISI specifications without disclosing them either in the show cause notice or at the personal hearing. Thus the petitioner was denied an opportunity to show thatno reliance could be placed on ISI specifications. The fact thatisi specifications were not disclosed to the petitioner was notdenied by the counsel for the respondent. In fact, this groundof the challenge was not even argued by the counsel for therespondent. The submission of the petitioner has, therefore, tobe accepted. It was not the requirement of the statutory orderor the Import Policy that imported oil must comply with thespecifications of the ISI. But the Collector holds that the specifications are laid down by eminent experts and, therefore, theyshould be accepted. In a similar situation Industrial Injuriescommissioner considered the report of the Medical Expert without notifying the same to the parties. It was held that fairopportunity to defend was denied to the party as he was unableto comment on the report. (R. V. City of Westminister Assessment Committee, 1941, 1. K. B. 53 and R. V. Deputy Industrialindustries Commissioner ex p. Jones (1962) 2 Q. B. 677x51 ). But a direct authority, where order was quashed for non-disclosure of I. S. I, specifications is the order of the new Appellatetribunal under the Act-in Mukund Engineering Works v. Collector of Central Excise (1983 EL. T. 816 ). The respondenthas replied upon, Union of India v. Delhi Cloth and Generalmill (AIR 1963 S. C. 791) wherein an excise matter the I. S. I. specifications were relied upon. In that case Respondent's experthad filed an affidavit that. manufacturers and traders call edibleoil as 'refined oil only after deodorisation. He had filed 18affidavits of concerns marketing refined, oil in his support. I. S. I. specificationtions were attached, which supported trade practice. No evidence was produced by Appellant. They only relied onscrientic books. The ISI specifications Were disclosed in theaffidavit. The petitioners wers not taken by surprise. manufacturers and traders call edibleoil as 'refined oil only after deodorisation. He had filed 18affidavits of concerns marketing refined, oil in his support. I. S. I. specificationtions were attached, which supported trade practice. No evidence was produced by Appellant. They only relied onscrientic books. The ISI specifications Were disclosed in theaffidavit. The petitioners wers not taken by surprise. It mustbe noted that the burden,of proving that the requirements ofnatural justice, are followed, is the Government. The Board ofhigh School V. K. Chittra Srivastava ( AIR 1970 SC. 1039 ) (52 ). It may be further noted that the Collector had notcollected any independent evidence of trade practice or otherwise but had merely relied upon the ISI specifications in coming to the conclusion that industrial oil was covered by Appendix IX, I, therefore, hold that the impugned order of the Collector is a nullity and non-est for violation of principles of naturaljustice ( 105 ) THE second limb of the argument is that the impugneddecision of the Collector is not his own but is taken at thedicate and behest of the Joint Controller and his office. Thesubmission is that a decision of a quasi-judicial tribunal is badin law when he surrenders his judicial power in favour of theexternal executive agencies. In administrative law this amountsto violation of principle of natural justice. This submission ofthe petitioner was also not reversed by the respondents. Noattempt was made to deny the factual positions or the legalinterferences flowing from them. Confidential instructions weerissued by Joint Chief Controller of Imports and Exports (Shritakhat Ram) on 4-9-1982 to various Collectors of Customsdirecting them that before the clearance of the imported oilreport should be made to him. After the goods were importedat Kandia port a telegram was sent on 5-10-192s bythe Collector according to the said secret D. O. The Deputychief Controller, on the instructions of the Joint Chief Controllerasked for details of the import made by the petitioner and alsodirected that the clearance of the goods should not be allowed,without getting prior clearance "from this office". The. Collectorsent all photo-stat copies of all the documents of the petitionerto the Joint Controller and withheld clearance of the goods. Thecollector wrote to Director of Customs on 25-10-1982 to fakeup the matter with Shri Takhat Ram, Joint Controller. Thedirector of Customs accordingly took up the matter with Shritakhat Ram expressing some of his doubts. The. Collectorsent all photo-stat copies of all the documents of the petitionerto the Joint Controller and withheld clearance of the goods. Thecollector wrote to Director of Customs on 25-10-1982 to fakeup the matter with Shri Takhat Ram, Joint Controller. Thedirector of Customs accordingly took up the matter with Shritakhat Ram expressing some of his doubts. He sought earlyinstructions to the Collector direct "since the goods have alreadyarrived at Kandia port and are awaiting clearance". He requestedthat "the matter may be treated as must urgent". Thereafter, theshow cause notice was issued by the Collector on 25-11-1982. None of these facts are denied by the respondent. Seeingthese facts and dates, in their junta position, it is elementary logic that the Collector has mechanically followed the directions of his administrative superiors and nut exercised his independent judicial mind to ome to a judicial finding. The Director of Customs has specifically referred to "confidential D. O. letter dated 4-9-1982". It is total surrender of the judicial functions and duty by the Collector to act according to these directions. If any authority is necessary to hold that the order of thecollector is totally invalid and non-est as it is not his order,one can refer to Puntaspur co. v. Cane Commissioner AIR1970 SC P. 1896. Some other aspects of the matter are alsonoteworthy. The confidential instructions, rot to clear the goods,were issued by Shri Takhat Ram, Joint Controller after he failedto pursuade the Central Government, while deciding the revision proceeding under section 131. The said confidential D. O. issued on 4-9-1982 was issued after the AM 81-82 and AM82-83 Import Policy public notices were issued. By the date thesaid confidential d. o. was issued, industrial oil was alreadymade a canalised item. Therefore, there was no occasion to issuesuch instructions. Further, the purported basis of his confidentiald. o. was the large scale imports from Singapore and Phillipines. Admittedly, in the present case, the import was from Sri Lankaand not from Singapore or Phillipines. IV. was the duty of thecollector of Customs, to address himself to these aspects of theadministrative instructions. If he had discharged his judicial dutyjudiciously he would have discovered that the said administrativeinstructions were not applicable and were irrelevant, apart fromthe fact that they were legally impermissible. I have, therefore,no hesitation in declaring the Impugned Order bad in law andnon-est. The Collector in his affidavit has stated that he hastaken independent decision. If he had discharged his judicial dutyjudiciously he would have discovered that the said administrativeinstructions were not applicable and were irrelevant, apart fromthe fact that they were legally impermissible. I have, therefore,no hesitation in declaring the Impugned Order bad in law andnon-est. The Collector in his affidavit has stated that he hastaken independent decision. On the admitted facts stated above,it can only be said that the affidavit is bold but not truthful. ( 106 ) PREVERSE Order '. Let us probe this matter further. Has the Collector takenindependent decision on the evidencs before him ? The submission of the petitioner is that the Collector's decision is preversebecause it is not based on any evidence. Now, it is an admittedposition that the department had neither collected any independent evidence nor produced any before the Collector. The evidence as produced by the petitioner was as follows; ( 107 ) AS traders the petitioner and their sister concern hadunderstood that industrial coconut oil was not a canalised item. The Collector of Customs at Bombay and Kandla understoodthe, policy in the same way and cleared the imports in May, 1981,and July, 1981 respectively. When the Bombay Collector, earlier,did not clear the goods the Central Government in revisioncleared them and set aside confiscation and redemption fine. Insimilar circumstances, where there was a conflict of decisions ofthe Collector of Madras, Cochin and Bombay the conflict wasresolved by the special bench of the board and industrial oil wascleared as a raw material falling under Appendix X. The Statetrading Corporation gave a certificate that it was importing onlyedible oil and, therefore, industrial oil could not be importedthrough them. This was strong evidence of not only the tradepractices and understanding of the relevant import policy butof admission on behalf of the various agencies of the Government of the claim of the petitioner. It may be noted that thecentral Government is itself the biggest trader. It trades throughits departments, statutory corporations and Government companies. It has a power to do so under Article 298 of the Constitution. It has an unchallengeable power to establish monopolyof trade under Article 19 (6) of the Constitution. But it is notonly a trader. It lays down import and export policy Before thepolicy is framed it consults the trade representatives. In everyimport and Export Policy the Government asserts, (in the preface to the publications) that trade and business representativesare consulted. It has an unchallengeable power to establish monopolyof trade under Article 19 (6) of the Constitution. But it is notonly a trader. It lays down import and export policy Before thepolicy is framed it consults the trade representatives. In everyimport and Export Policy the Government asserts, (in the preface to the publications) that trade and business representativesare consulted. S. T. C. i. e. State Trading Corporation, is a Tradingcorporation set up by the Central Government. It is not merelya canalising agency but it also looks afrer the distribution andpricing of imported goods. The Collector as staled earlier hascompletely ignored the Central Government and the Board. Heturned a deaf ear to import of industrial oil cleared by the Collector of Customs, Bombay in May, 1981. The Kandla port haditself cleared industrial oil imported by the present petitionerhimself in July, 1981. The Collector has not shown even theminimum Judicial discipline to distinguish between the July, 1981import of the petitioner and the present import. He simply didnot deal with it although the fact was brought to his notice. Hehas. also not referred to any decision of any Collector of Customswhich had penalised the import of industrial oil, after the decision of the Central Government in revision. Thus the relevantevidence on the record produced by the petitioner was not considered in arriving at the principal finding of fact. The evidenceof the S. T. C. is thrown overboard by The Collector of Customson certain (unreasonable) grounds which no judicial officerwill do. He has misunderstood the submission of the petitionerin this regard. The letter of the S. T. C. was not produced ascorrect interpratation of the relevant entry in the policy. It wasonly produced to establish a fact. S. T. C. , as a trader and as theonly canalising authority, was not importing industrial oil as acanailsed item. Its understanding on this matter was a questionof fact. The Collector has referred to para 202 of the Importpolicy A. M. 1980-81 and para 211 of the Import Policy A. M. 1981-82 and has held that the proper authority to interpret thepolicy was the Chief Controller of Imports and Exports and opinion of the S. T. C. was not binding. Even on this question thecollector ignored the fact that the said paras of the Importpolicy are in the nature of administrative directions. Even on this question thecollector ignored the fact that the said paras of the Importpolicy are in the nature of administrative directions. But undersection 131 of the Customs Act it is the Central Government in Revision, which has the final authority to interpret theimport Policy and law. In the present case there was such adecision, and the same was by passed by the Collector. Thecollector has not found that the statement of the S. T. C. thatthey were not importing industrial oil as a canalised item, wasuntrue. He could have directed the Department to produce factual evidence from the S. T. C. that it was actually importing industrial oil. Such evidence would have been a complete answerto the claim of the petitioner. Similar question arose before thecentral Government while deciding the revision. Its order expressly states that no evidence of importation of industrial oil,in regard to impart policy A. M. 1980-81 was produced beforeit. Also, before the Special Bench of the Board, no notificationor factual evidence was produced to show that the policy wasnot restricted to canalise importation of edible oil, only (as islaid by the Board ). ( 108 ) THE absence of factual evidence, has been tried tobe made good by the Collector, by relying upon ISI specifications. These are various specifications of different types of coconut oil. The Collector relied upon it because the specifications are laiddown by eminent persons and experts. But the general specifications, without actually testing the oil in question is no evidenceas to which specification the oil in question belonged to. Therewas no such separate test in terms of the ISI specifications. Itis an admitted fact that the oil in question was examined by thechemial Analyser of the Government, at Kandla. The Chemical Examiner certified that the oil was non-edible oil. Thecollector has not discussed the evidence of the Chemical Analyser. He has not stated why proper (literal) specifications ofi. S. I, was a better evidence than the actual chemical examinationdone by Government Analyst'. The whole discussion of the Collector in this regard is utterly vague and confusing. He onlylooked to the word "refined" but overlooked the word "industrial". As stated earlier neither fhe statutory order nor the Import Policy notices require that the imported oil must answer ani. S. I. specification. The whole discussion of the Collector in this regard is utterly vague and confusing. He onlylooked to the word "refined" but overlooked the word "industrial". As stated earlier neither fhe statutory order nor the Import Policy notices require that the imported oil must answer ani. S. I. specification. Furthe,, the said publiction of the ISIitself makes it clear that their object is to provide specificationsfor marketing and food adulteration purposes. Reference to1st specification, by no stretch of imagination can be called anevidence. In any case. it was totally irrelevant for the enquirybefore the Collector. ( 109 ) TO sum up the Collector has not considered the petitioner's evidence on record and the department did not produceany independent evidence to counter the petitioner's claim. Theconclusions are such as no reasonable man would draw. Thefindings of fact and the Order of the Collector are preverse. They are, therefore, illegal and are set aside. Imposition of restrictions laid down by subsequent Policies Arbitrary ( 110 ) BUT the respondent argued that the actual importationtook place in September, 1982. By virtue of the endorsementson the licences at the time of their revalidation and by virtueof the public notice dated 28-2-1982, petitioner's import wasillegal. In A. M. 1981-82 industrial coconut oil was alsoincluded in the canalised items, and the Collector held thatthe said public notice has a retrospective operation w. e. f. 3-4-1981. Now, it is an admitted fact that the Collector ofbombay had in May, 1981 allowed import of industrial oildirect. Actual import took place after the policy of 1981-82came into operation, although the licences were for the year1979-80. Petitioners own consignment was cleared at Kandlaport in July, 1981 i. e. after the 1981-82 policy came invogue. Here the licences were of the year 1980-81. It is alsoan admitted fact that Collector of Customs, Calcutta, allowedimportation of large quantity of 10,000 mt. tonnes of industrialcoconut oil in favour of M/s. Jain Oil Mills Pvt. Ltd. , Bombayand Metro Exporters, Bombay on 12-1-1983. This importationwas after the import policy of 1982-83 was brought in force. Itmay be further noted that in none of the three cases statedabove the Department preferred any appeal. This can leadto two inferences. The Govt. did not have any policy toimpose canalising on importation of industrial oil for thelicences which were issued prior to A. M. 1981-82. In thealternative, it must be said that the Collector's decision wascapricious and vagrant. Itmay be further noted that in none of the three cases statedabove the Department preferred any appeal. This can leadto two inferences. The Govt. did not have any policy toimpose canalising on importation of industrial oil for thelicences which were issued prior to A. M. 1981-82. In thealternative, it must be said that the Collector's decision wascapricious and vagrant. The same vice of arbitrariness haspercolated in the reasoning of the Collector in imposingsubsequent policy on the licences issued prior to the newpolicy. If the intention was to make the new policy applicable, the simple method was to cancel the existing licences andissue fresh licences. Another course open to the Govt. was notto revalidate the licences. On the facts of this case I holdthat the Collector was wrong in arbitrarily imposing a policy onthe petitioner and holding that importation by the petitioner wasprohibited and culpable. The order of the Collector is also badin law for another reason. He has held that public noticeof 28-2-1982 has a retrospective effect from 3-4-1981. It isa patent error of law on its face to equate the public noticewith a statutory provision. Import policy statement for eachyear and public notices clanlfying' the policy, are in the natureof administrative instructions. They are always prospective inoperation. Collector's reliance or AIR 1969 S. . C page 1114is totally misconceived because the judgment deals with thestatutory provisions and not with the executive instructions. Itmay be noted that the counsel for the respondent did not replyto the above contentions of the petitioner at the time of thehearing. III. Confiscation and Fine :we have so far seen how the Collector's order is vitiateddue to arbitrariness in the implementation of the policy andfor other reasons. Let us look at the final operative order now. The Collector has confiscated the goods but released them onfine of Rs. 5 crores. Imposition of confiscation and penalty is aquasi judicial function. Therefore, the order confiscating thegoods should be a reasoned order. But the impugned order isnot a speaking order. While imposing the fine of Rs. 5 croresthe Collector has held that the petitioner had "deliberately flouted" the provisions of law. Neither the law nor the peculiarfacts of this case are even attempted to be discussed before takingan extreme step of confiscation and imposition of an excessivelyheavy penalty. But the impugned order isnot a speaking order. While imposing the fine of Rs. 5 croresthe Collector has held that the petitioner had "deliberately flouted" the provisions of law. Neither the law nor the peculiarfacts of this case are even attempted to be discussed before takingan extreme step of confiscation and imposition of an excessivelyheavy penalty. Proviso to Section 125 lays down that the finein lieu of confiscation shall not exceed the market price of thegoods confiscated, less, in case of the imported goods, the dutychargeable thereon. The Collector did not even investigatewhat was the market price of the goods imported. This is aclear failure of the statutory duty by the Collector. The Collector also overlooked that the confiscation and penaltv are penalprovisions of the Statute. Such provisions are to be strictly con-strued and exercised with judicial discretion. The language ofthe section is "such goods shall be liable to confiscation". Thelanguage is not "such goods shall be confiscated". Two thingsare indicated by this difference. The first is, that principle ofabsolute liability is not applicable, in case of liability to confiscation. Secondly, whether the goods should be confiscated or notis a matter of discretion of the Collector. So also what penaltyhe should impose is also a matter of discretion. The proper legalapproach is illustrated by the following cases :in Shah Rikhabdas Bharwanlal Vs. The Collector of Customs : (1961) (n) M. L. J. 443 (53), identical facts situationwas present. The goods of the appellants were confiscatedwhile some other merchants for the same offences were let offwith a warning. Rajmanner C. J. , speaking for the Divisionbench of Madras High Court, held : "it should not be overlooked that here we have the case of deprivation of propertybecause confiscation is just that. It is idle to say it is not,because on payment of a fine which is equal to the value of thegoods, the importer can take delivery of the goods. It onlymeans that the appelants having been deprived of their goodsare given an offer to purchase such goods" (page 447 ). Thelearned Chief Justice, further observed "the language (of oldsection 167 of the Sea Customs Act does necessarily implythat there is a discretion because the language is not such goodshall be confiscated'. On the other hand the language is 'suchgoods shall be liable to be confiscated". The Collector of Customs while enacting under Section 1. Thelearned Chief Justice, further observed "the language (of oldsection 167 of the Sea Customs Act does necessarily implythat there is a discretion because the language is not such goodshall be confiscated'. On the other hand the language is 'suchgoods shall be liable to be confiscated". The Collector of Customs while enacting under Section 1. 67 is obviously acting as aquasi-judicial Tribunal, such discretion must be exereised judicially and not arbitrarily. The Collector must decide in eachparticular case if there were circumstances which would call forthe drastic publishment of contiscation. If there was a case inwhich discretion should have been exercised in favour of theimporter, this was such a case. . . . . . . . . . . , The. Collector deesnot appear to have dealt with case as if he was vested withjudicial discretion because he has not given any reason wily thedrastic publishment of confiscation should have been imposedon the appellants whereas two other similar merchants whohad committed the same offence had been let off with awarning. (Page 448 ). On these findings the High Court setaside the order of confiscation. ( 112 ) M/s. Jagan Nath Aggarwal Vs. Sh. B. N. Dutta and others (C. A. No. 801 of 1964) (54) dated 10/01/1967, on identical facts, has emphasised on the penal aspect of Section 167 ofthe Sea Customs Act. There the question was whether, thelicence on true construction, authorised the import of camphorb. P. According to the Govemment, camphor B. P. was notcovered by Sr. No. 109 of Part IV of the I. T. Schedule but fellwithin Sr. No. 131 of Part IV and its import was not permissibleunder the licence. The facts of the case disclosed that otherimporters were allowed to import camphor B. P. under similarlicences. The Supreme Court held; "assuming that there is adoubt in the construction of the licence the appellant againstwhom the penal provisions of Section 167 (8) of the Sea Customsact 1878 are sought to be enforced is entitled to the benefit ofthe doubt, It may be recalled that the Joint Chief Controllerof Imports and! Exports, the appropriate authority, forclarification of the Import Policy unequivocally stated in hisletter dated 5/06/1959 that Camphor B. P. should be imported under the licence, and only on 13/07/1959 he cancelled this letter. Moreover, other importers who were allowedto import Camphor B. P. under similar licences for the importof drugs and medicines. Exports, the appropriate authority, forclarification of the Import Policy unequivocally stated in hisletter dated 5/06/1959 that Camphor B. P. should be imported under the licence, and only on 13/07/1959 he cancelled this letter. Moreover, other importers who were allowedto import Camphor B. P. under similar licences for the importof drugs and medicines. These facts show that even the Government 'authorities were in doubt about the proper import ofthe licence". . . . . . The Assistant Collectoc,of"customsforappraisement on an erroneous construction of the licence heldthat the. import of Camphor B. P; was 'not authorised by it andby such erroneous construction wrongfully assumed jurisdictionto confiscate the goods. The error appears on the face of therecord and goes to the root of its jurisdiction". The order ofconfiscation was, therefore, quashed and set aside by the Supreme Court. ( 113 ) ON the similar grounds and identical facts, Bombayhigh Court has quashed confiscation order in Gujarat Stateexport Corporation Vs. U. O. I. 1984 (17) E. L. T. 50 Bombay (53) (55 ). The Court held "the petitioners relied upon the long standing practice of the Bombay Customs House and effected the import and as the Customs House itself was in doubt asto whether the import was valid or not and was releasing theimport on previous occasions; including the import ofidentical items of the petitioners, it can not be said that the import was in contravention of the provision of Sec. 111 (d) of thecustoms Act. In Hindustan Steel Ltd. v. State of Orissa, AIR1970 S. C 253 (256) the Supreme Court has held that wherethe branch flows from the bona fide belief that the offender isnot liable to act in the manner prescribed in the statute, nopenalty can be imposed, because these are quasi-criminal proceedings and penalty is a matter of discretion. It must be proved by the Department that the party acted in "deliberate defiance of law" or was "guilty of conduct contumacious or dishonest" or it acted "in conscious disregard of its obligation". ( 114 ) APPLYING the; law laid down in the various decisions, it is clear that the Collector's order of confiscating the goods andimposition of penalty suffered from lack of jurisdiction or inany case failure to exercise jurisdiction judicially. It is a nonspeaking order and is, therefore, violative of the principles ofnatural justice. ( 114 ) APPLYING the; law laid down in the various decisions, it is clear that the Collector's order of confiscating the goods andimposition of penalty suffered from lack of jurisdiction or inany case failure to exercise jurisdiction judicially. It is a nonspeaking order and is, therefore, violative of the principles ofnatural justice. ( 115 ) THE Joint Controller of Imports and Exports (Shritirath Ram) had pleaded to the Central Government, whileexercising the revisional power under Section 131 of the Act,that a fine of Rs. 25,00,000 imposed on the sister concern ofthe petitioner, was too nominal and heavy fine should have beenimposed. From the chronology of events and correspondence,i have already held that the Collector's order was not his ownbut was one passed at the behest of the Joint Controller. It isreasonable to infer that the extreme measure of confiscation andimposing heavy fine of Rs. 5 crores (the petitioner calls it a'savage' fine) was at the dictates of the Joint Controller, as noreasons whatsoever are assigned by the Collector. On thisground also the Collector's order has to be quashed. ( 116 ) I must add that the requirements of law of exercisingthe discretion judicially, to discuss the evidence and to give areasoned order, giving benefit of doubt to the importer in mattersof confiscation and penalty, are procedural safeguards againstan arbitrary order. This means that even if the order of thecollector, can be justified, as a valid order, on merits still theend result would be the invalidity of the order. In other words,once the order fails on the grounds stated above, it is not necessary to examine whether separately and independent of thesaid grounds of invalidity, the order survives. The contentionof the petitioner to this effect, is valid and upheld. ( 117 ) I have already noted that the Collector has describedthe action of the petitioners "as deliberate flouting" of the provisions of law, without staling any facts or reasons. Brothersachar has, however, held that liability to confiscation is absoluteliability in law and there is no question of mens rea involved inthe matter. He has 'also tried to draw a distinction between confiscation under section III and personal penalty under Section112 of this ground. The learned Judge has also cited some decisions stating that the object of the Act is to prevent smugglingand illegal importation. He has 'also tried to draw a distinction between confiscation under section III and personal penalty under Section112 of this ground. The learned Judge has also cited some decisions stating that the object of the Act is to prevent smugglingand illegal importation. It has also been held that the petitionershould not be allowed to make illeeal monetary pains at thecost of national economy. With respect, I beg to differ. Section 111 and 112 fall under the same Chapter, Chapter XIV,under the heading 'confiscation of goods and conveyances andimposition of penalties'. All the provisions of Chapter XIVare penal provisions. The requirements of law for liabilityunder Section 111 and Section 112 are not difierent. Order ofconfiscation under Section III is an order in rem. It meansthat it primarily operates on the goods. An order under Section112 is an order which operates primarily on a person, and thatis why it is called a personal penalty. But beyond this distinction there is no difference between them. I have already notedthe observation (on section 167, Sea Customs Act) by 1961 (II) M. L. J. 443. The words 'shall be liable' show that whetherthe liability arises or not is to be decided by the Court. It is amatter of judicial discretion not a case of absolute liability. The relevant principle of liability is one which is applicable incriminal law. I am also not impressed by generalisation suchas evil of smuggling or loss to national economy etc. In thiscase the Central Government, the Board under the Act, variouscollectors of Customs and S. T. C. have taken a view that industrial coconut oil was not a canalised item. Can it be said thatall these agencies of the Government' were oblivious and complacent of smuggling and loss to national economy ? Can it besaid that they connived at the illegal gains being made by thepetitioner ? I would prefer to go by facts, the peculiar facts ofthis case. I would also like to follow some wellknown principles of judicial decisions. More caution should be exercisedwhere the offence is serious or stakes are heavy. So also, morethe publicity to a case greater is a need to have sharp focus onthe actual facts. Another principle of judicial discretion waslaid down by Lord Justice Scrutton in Rex Vs. Home. Secretary (1923 ). 92 LJ. K. B. 79l (56): "it is. More caution should be exercisedwhere the offence is serious or stakes are heavy. So also, morethe publicity to a case greater is a need to have sharp focus onthe actual facts. Another principle of judicial discretion waslaid down by Lord Justice Scrutton in Rex Vs. Home. Secretary (1923 ). 92 LJ. K. B. 79l (56): "it is. indead, one test of beliefin principles if you apply them to cases with which you have nosvmpathy at all. " This principle was cited with approval byvivin Bose, J. in S. Krishnan Vs. state of Madras A. T. R. 1951s. C. 301 (57 ). On the facts of this case. and, with these principies in view 1 hold that the Collectors order was bad in lawand should be set aside. ( 118 ) VIOLATION of Fundamental Rightsthe counsel for the petitioner has then submitted that thecollector's Order violates the fundamental right of the petitioner guaranteed by Article 14 and Article 19 (l) (g) of the Constitution. Hand has also submitted that the order has resulted into illegal deprivation of property which is violative of Article300-A of the Constitution. I must note here that the counselfor the respondent did not make any attempt, at the time of thearguments, to meet this challenge. Brother Sachar has heldthat taxing events being different, in different cases of importation, no discrimination can be pleaded. It is now well settledthat violation or otherwise of fundamental rights is not to bedecided by a text of an order or the letter of statute. It has tobe judged on the basis of the result and impact, on lawful expectations and existing rights of the citizens. I have alreadydemonstrated how arbitrariness and caprice is writ large on theface of the impugned order. What is arbitrary is per se discriminatory Ramana Dayaram Shetty v. The International Airportauthority of India and Ors. ATR 1979 SC 1628 (58) Ajay Hasiaetc. v. Khalid Mujib and Ors. etc. AIR 1981 SC 487 (59 ). Thecustoms Act, the Import and Export Act and the Import Control Order assume that the benefits and burdens shall be equallyand uniformly fastened on all the importers. If a Collectorwhimsically gives the benefit to some importers or in relationto some consignments only and denies it to others, the actionsare both arbitrary and discriminatory. The impact of this whimsicality is that some importers are deprived of their propertywhile the others are not. If a Collectorwhimsically gives the benefit to some importers or in relationto some consignments only and denies it to others, the actionsare both arbitrary and discriminatory. The impact of this whimsicality is that some importers are deprived of their propertywhile the others are not. It has also an effect of permittingright to carry on trade guaranteed by article 19 (l) (g) to sometraders while it is denied to others. It-must ha noted that quasijudicial function is nothing else but a jndicial function performed by an Administrator. Its object is to implement the policyof the state. Some judicial methods of ascertaining the factsand interpretation of law are obesrved by such a tribunal. Butprimarily, the object is, to translate the policy in action, bachevent of importation is, of course, different. But if no attemptis made by the Collector to show how facts in each case aredifferent and why some are entitled to benefit of policy andothers are not, the order of the Collector would be illegal andunconstitutional. The submission of the petitioner is accepted. The impugned order violates Articles 14, 19 (l) (g) and Article300-A of the Constitution. ( 119 ) INTERPRETATION of entry "coconut Oil"the discussions so far should suffice to set aside the impugned order and the success of the writ petition. But the counselfor the respondent has tried to affirm the. impugned order onother grounds. It is submitted that para 5 of Appendix IX ofimport Policy A. M. 1980-81 mentions "coconut oil" (amongstother oils) as a canalised item through STC It is submittedthat the entry "coconut oil" is not qualified or restricted by anywords. Therefore, the entry covers both edible and industrialvarities of coconut oil for the purposes of canalisation. It is alsosubmitted that the trade meaning of Coconut oil is not edible"coconut oil" because only insmall part of India "coconutoil" is used as an edible oil. It is then submilted that even iftwo interpretations are permitted, the one accepted by the department should not be rejectee by the court, exercising thejurisdiction under article 226 of the Constitution, unless thecourt. holds that the interpretation is so perverse as no reasonable man would ,do,. [1962 (1) SCR page 753,1964 (7) SCRpage 62]. In the Counter-affidavit the respondent has pointedout that in the case of Palm oil after breaking up, the refinedliquid is called palm oil' while the solid partis called 'palmstearine. holds that the interpretation is so perverse as no reasonable man would ,do,. [1962 (1) SCR page 753,1964 (7) SCRpage 62]. In the Counter-affidavit the respondent has pointedout that in the case of Palm oil after breaking up, the refinedliquid is called palm oil' while the solid partis called 'palmstearine. According to the counter affidavit "in such cicumstances it must have become necessary to make it clear that'palm Oil' enumerated at SI. No. 4 in para 5 covers all typesincluding 'palm Olein". It is submitted that this is not the casewith Coconut oil. ( 120 ) THIS was all that was argued by the counsel for therespondent. Brother Sachar has held that a common man usescoconut oil as Hair-Oil. Only a small minority in India usescoconut Oil as an edible oil. According to the learned Judgethe trade usage is in favour of treating Coconut oil as an Indu-strial Oil. According to him, the specific entry in the Importpolicy A. M. 1981-82, covering industrial Coconut oil also wasa 'clarification' of the policy of 1980-81. The learned Judgehas then commented that the Central Government while passingan order in contrasting the entry regarding Palm Oil withcoconut oil, and holding that industrial oil was not coveredhas misdirected itself. The learned Judge has also referred to the break-up of various entries concerning oil in the A. M. 1978-79 and has come to a conclusion that Industrial Coconutok was a canalised item right from 1978-79 and was continuedthereafter. . ( 121 ) TO my mind this explanation of the impugned orderis impermissible. The order of the Collector must stand onits own legs. Neither through the counter-affidavit, nor by aaguits own legs. Neither through the counter-affidavit, nor by aaguare concerned with the quasi-judicial order. Even in case ofadministrative orders, external aids for supporting them areimpermissible. We have also a limitation of the jurisdictionof certiorari. Only in an appeal it is possible to explore whether the impugned order can be saved on other grounds. Inthis context it must be clearly noted that the Collector has notadverted to the common and trade meaning of "coconut oil"at all. I find another difficulty also. How to enquire the meaning of the entry, do-hors the soecial facts of this case ? We arenot exploring a virgin continent. It has already been exploredby several Government Agencies. I cannot ignore these milestones and land marks. I find another difficulty also. How to enquire the meaning of the entry, do-hors the soecial facts of this case ? We arenot exploring a virgin continent. It has already been exploredby several Government Agencies. I cannot ignore these milestones and land marks. Frankly, as Judges, we are no expertsin the field an compared to these government agencies [libertyoil Mill's case (1984) 3 SCC 465 . . . ] (60 ). I am also unableto held that the Central Government's order under section 131was mis-directed order. That order had become final bothunder the Act and for the reason that it was not judicially challenged. That order is not an impugned order before us. Thereasoning as to why the words 'all types' were subsequentlyadded to the entry 'palm Oil' is not discussed by the Collectorate at all nor has he refused to follow the order of the Centralgovernment on this ground of alleged mis-direction. It is onlyin the counter-affidavit that a half-hearted explanation has beenjattempted. Half-hearted because, the counter-affidavit statesit must have become necessary" not "that it was in fact necessary". But this vague asscertion of the counter affidavit is alsonot correct. The special Bench of the Board has held that'palm Stearine' is an Industrial Oil not covered by Appendix IX. It is not a "solid" as stated in the counter-affidavit. ( 122 ) NOW. it is a settled law that the such entries in thetarrifs are not to be interpreted on the basis of ascientific meaning or on chemical formulate. That meaning is to be accepted which is commonly understood. It may be an understanding of a common man on the street insome cases but it is more often the sense or the practice of thetraders that is dicisive. In case of violation of Food Adultrationact, or Sales Tax Act or even an Excise Act, the understandingof the common man on the street may be taken into account. Because, a mis-branded article or goods would directly affect aman on the street. Not so in case of import of poods. Particularly. where the goods are industrial goods, meant as, rawmaterial for producing non-edible goods by another industry. Common man in the North, uses. Coconut oil as a Hair Oil. Butnot so, in the several Coastal states of India where Coconut isgrown. Not so in case of import of poods. Particularly. where the goods are industrial goods, meant as, rawmaterial for producing non-edible goods by another industry. Common man in the North, uses. Coconut oil as a Hair Oil. Butnot so, in the several Coastal states of India where Coconut isgrown. It is very natural for the" people in these states to we theproduct which is cheaply and immediately available for using asa cooking medium. But what is more important is the tradeusage and practice. Traders, and particularly the wholesalers,aim at an All India market. As compared to the western world,primary use of Oils in India, is edible use. In no part of the country Indian Food is cooked without Oil medium. The shortages and fluctuations In prices has become endemic in the lastdecade. Traders are naturally interested in dealing in anyvariety of edible oil which at a given time will give them maximum profit. Large scale importation of edible oil in India started from 1977 primarily because shortage of oil seed productionand to keep the prices of edible oils within the reasonable limits. Can it be assumed that the Government was more concerned withsoap and shampoo than a cooking medium used every day inevery Indian Kitchen Therefore, when oil is mentioned simpliciter, it would be understood in common trading parlance as anedible oil and not. as an industrial oil. Indeed, as would be shownlater, this is the only sense, in which the Government has iteslfunderstood and has laid down the policy accordingly. ( 123 ) CASES ON CLASSIFICATIONIn Ramavatar Budhaiprasad. v. Asstl. Sales Tax Officer (A. I. R. 1961, S. C. 1325) the question was whether "betel leaves" were "vegetables" for the purpose of exemption from salesfax. Items of exemption were specifically enumerated. The restof the items were liable to sales-tax. Earlier, both the above itemswere enumerated for exemption. But there was an amendmentin the Act and words "betel leaves" were deleted. The Supremecourt held that the legislative intent was not to exempt the betelleaves. The court held that the word "vegetable" must be understood in the popular sense as understood in common language. ( 124 ) SALES Tax Commissioner, Indore v. Jaswant Singh, (A. I. R. 1967, S. C. 1457x61) dealt with the question as to whether coal includes 'charcoal'. The court held that both are usedas fuel and the traders and consuners do not make any distinction between them. ( 124 ) SALES Tax Commissioner, Indore v. Jaswant Singh, (A. I. R. 1967, S. C. 1457x61) dealt with the question as to whether coal includes 'charcoal'. The court held that both are usedas fuel and the traders and consuners do not make any distinction between them. The court observed:"it is only when the question of the kind or variety ofcoal would arise that a distinction would be madebetween coal and charcoal". Black insulating tapes used in electric insulations are not "adhesive tapes" and the import was not banned, was held by thebombay High Court in H. R. Syiem v. P. S. Lulla (72, Bombayl. R. 534 ). Adhesiveness is only a secondary characteristic ofthe insulating tape. In Dunlop India Ltd. v. Union of India, (AIR 1977 S. C. 597) the Supreme Court held that V. P. Latex, as known to trada and commerce in India and abroad,is raw rubber falling under item 39 I. C. T. and not under residnary eatry 82 (3) and did not attract higher customs dutyunder the residuary entry. The court further held that on theevidence before the revisonal authority (Central Government)v) reasonable man could have come to a different conclusion. End-use test applied by the revisional authority was found to beirrelevant in the context. Hume Pipes which are generally laidunderground and are extremely heavy are not used in privateor public lavatories, urinals and bath-rooms, and hence are netsanitary fittings" in the popular sense. There was no evidencethat they are used as "sanitary fittings". The Supreme Courtheld that Hume Pipes were not liable to sales-tax as "sanitaryfittings" under U. P. Sales Tax Act-State of U. P. v. Indian Humepipe Co. [air 1977 S. C. 1132. (1134)]. ( 125 ) THESE cases illustrate that mere textual interpretation (and absence of restrictive or limiting words)--was not acceptedas. decisive by the supesrior courts. Courts have always insistedon evidence. If the grounds for classification are not supportedby evidence and the based on irrelevant considerations, theclassification is held to be preverse. In our case, the Collectorlid not collect any evidence of trade or cpmmercial practice. He ignored the petitioner's evidence. He also did not bringen record material, in the possession of the Department,explaining the necessity of canalisation of edible oil only. Thepresent interpretation (unsupported by the quasi-judicial authorities under the Act) of the Department is perverse arid untenable. In our case, the Collectorlid not collect any evidence of trade or cpmmercial practice. He ignored the petitioner's evidence. He also did not bringen record material, in the possession of the Department,explaining the necessity of canalisation of edible oil only. Thepresent interpretation (unsupported by the quasi-judicial authorities under the Act) of the Department is perverse arid untenable. Functional test may go a long way to understand the tradepractice and meaning but is not always conclusive. ( 126 ) IN Maharaja Book Depot v. State of Gujarat (1979)1s. C. C. 295 (62), the question was whether ''paper" includes"exercise Book" as an 'essential article' for regulation undergujart Essential Articles Dealers (Regulation) Order, 1971. Supreme Court accepted the description of word paper (in dictionaries) to mean "any substance in sheets or leave used forveiling, printing etc" The court held tlat by pinning andsticking into an exercise book, paper does not lose its identity. ( 127 ) BUT the learned counsel for the Responden'. s. has submitted that this court has no jurisdiction to intertere withthe classification of items made by the Department It is submitted that where two interpretations are possible, one favouringthe Department should be preferred by the court unless it isfound to be peiverse. Some decisions are cited in support ofthis. In Collector of Customs v. V. K. Ganga shetty (AIR1963, S. C. 1319) (63), the respondent had imported what arecalled "feed-oats" without licence. The question was Whetherfeed-oats" were "fodder" under Item 42 (Part IV---Import Tradecontrol Schedule) which required no licence or the same fulllunder Item 32 "grains" requiring licence. The Supreme Courtheld that the Department's interpretation that the feed-oats weregrains falling under Item 32 was not perverse and. therefore,should be accepted. The Supreme Court also relied upon onvenkateswaran, v. Wadhwani (AIR. 1961 S. C. 1506x64 ). The decision in Ganga Shetty was allowed by the Supreme Court inv. V. Iyer v. Jasjit Siagh (AIR 1973, S. C. 194) (65 ). In thatcase also there was an apparent conflict between the two items/entries in Part V, Schedule I to Import (Control) Order, 1955. Item 74 (vi) related to spare parts in power driven agriculturalmachinery (parts of sprayers ). Item 74 (x) was a specific entryregarding sprayers. The Department's contention that thegoods in question fell under Item 74 (x) was upheld by thesupreme Court on the same principle. Item 74 (vi) related to spare parts in power driven agriculturalmachinery (parts of sprayers ). Item 74 (x) was a specific entryregarding sprayers. The Department's contention that thegoods in question fell under Item 74 (x) was upheld by thesupreme Court on the same principle. Similar question of conflict between the entries fell for consideration in Super Traders v. Union of India, 1983, E. L. T. 258 (Delhi) (66), where theabove decisions of the Supreme Court were relied upon ( 128 ) IT may be noted that all these cases relate to the conflict of entries/items under different sfatutory orders. Secondly,there was no dispute as to the meaning of a particular entry. These cases are not relevant for resolving the problem posed inour case. Here the question is whether "coconut oil" simplicitor, as an item of canalisation, would also cover non-edible industrial oil. There is no conflict of two entries. So also canalisation of edible oil has long history. Besides this, in the presentcase the higher quasi-judicial authorities, namely, the Centralboard and the Central Government in revision had ruled thatnon-edible oils were not covered by canalisation order, but thecollector had refused to follow these orders. Even if the principle laid down by these decisions is to be applied in cases wherethere is no conflict of entries, ours is a case where the Centralgovernment itself had not found that two interpretations arepossible. The present stand of the Department conflicts withthe earlier stand of the Central Govrnment. The new standof the Department on the interpretation of the entry is perverse because the evidence is to the contrary. ( 129 ) RELVING on the decision of the Supreme Court inliberty Oil Mills v. Union of india ( 1984) 3. S. C. C. 465. itis submitted that this court is incompetent to adjudge thematter because we lack expertise in public and political,national and international economy and the broad policyconsiderations in the import trade. This to my mind is misreading the decision of the Supreme Court, What the Supremecourt has said is that because of the lack of expertise in thesaid matters the court is "incompetent to pass judgment on theappropriateness or adequacy of a particular import policy. " Thisis a well known principle in regard to foreign trade policiesof the Government. For example, the commercial journalsoften assert that import policy at a given rime is framed forpolitical considerations and for party gains. " Thisis a well known principle in regard to foreign trade policiesof the Government. For example, the commercial journalsoften assert that import policy at a given rime is framed forpolitical considerations and for party gains. This criticism isusually directed where the goods are available in plenty in localmarkets or where the goods are luxury goods. Courts cannotnormally go into these considerations to judge the wisdom ofimport policy on such general allegations. However, the implementation of policies must always be done within the framework of law. Therefore, the courts have power to examine ineach case whether the findings are based on evidence, whetherprinciples of fair-play and natural justice are followed andwhether the fundamental rights are breached or not. I do notthink that the Liberty Oil Mills case helps the respondents. ( 130 ) BUT by merely concentrating on the Tariff entry, therespondent is missing the real substance. The question for thedecision is not what "coconut oil" means. The real questionfor the decision is whether Industrial Oil was also a canaliseditem? In other words, how the trading community has understood entries in para 5 of the Appendix IX, in A. M. 1980-81 ?the entry in Para 5 reads as under: (1) Coconut oil. (2) Copra. (3) Groundnut oil/seeds. (4) Palm Oil (all types including palm. olein)Palmseeds. (5) Rapeseed Oil/seeds. (6) Safflower Oil/seeds. (7) Soyabean Oil/seeds, and (8) Sunflower Oil/seeds. ( 131 ) COCONUT oil, ground nut oil, musterd oil, and til oilare traditionally used as edible oils in India. It is only because of the shortage of seeds of these oils in Indiathat new varieties of edible oil such as Palm Oil. Rapeseed Oil,sunflower Oil, Soyabean Oil and Safflower Oil are being usednow a days as substitute of these traditional varieties ofedible oil. Now, when these new varieties of Oil are mentionedalongwith the traditional varieties for canalisation, how wouldthe trading community understand, para 5? They are familiarwith the shortages of edible oil and the consequent high prices. Is it not natural for them to. think that only edible oils are canalised ? Para 5 further mention copra and seeds of all the oils. What does it indicate ? It is a matter of common knowledgethat even now,. Indians prefer Oil procured by traditional methodof crushings oil seeds. This is a method of crushing oil seedsby wooden crushers operated by bullocks. This, is popularlycalled a Ghani. Para 5 further mention copra and seeds of all the oils. What does it indicate ? It is a matter of common knowledgethat even now,. Indians prefer Oil procured by traditional methodof crushings oil seeds. This is a method of crushing oil seedsby wooden crushers operated by bullocks. This, is popularlycalled a Ghani. Such oil is even hygenically preferred becauseit is more easily digested and it is free from chemicals. Whenseeds are mentioned alongwith the. oils in para 5 it can lead tono other conclusion except that edible oils are alone covered bythat,para , Traders dealing in oil seeds arid oils can not understand the entries differently. I have already pointed out thatthe Collector has not collected any independent evidence to showthat STC was in fact importing industrial oil alongwith theedible oil. Even the counter affidavit is blissfully silent. At thetime of the argument we directed the counsel for the respondentto produce the data. No such material was produced. Suchnew evidence could not have been considered at the stage ofarguments for supporting the impugned order. But if the materialwas produced it would have atleast helped the court to proceedon the correct lines. Instead, what is produced is an abstract ofquantities of Coconut oil imported from 1973-74, onwards,without any effort to clarify as to what percentage was of edible oil as against the industrial oil. What the respondent wantsis to interpret a cold entry in the Tariff but not to produceany factual evidence. It relies on logic because there is no factual evidence to support its conclusion. ( 132 ) BROTHER Sachar has referred to several entries in Appendix 'a' of Import Policy 1978-79 and 1979-80, and has held thatentry I in Appendix X of A. M. 1980-81 does not permit importation of industrial oil as raw materials. I do not agree withthis interpretation. If it was so why the so called clarificationwas made only in 1981-82 policy ? Can it be imagined thatgovernment would permit alleged illegal importation of Industrial oil in large quantities when it has a power to change thepolicy even in the middle of an import policy year ? Almostsimilar pleas of the change in the entries in the relevant appendices was made before the Special bench of the Central Boardwhich pronounced its decision on 28-5-1982. Almostsimilar pleas of the change in the entries in the relevant appendices was made before the Special bench of the Central Boardwhich pronounced its decision on 28-5-1982. But the Boardobserved "it may be true that the policy during the particularperiod does not necessarily have the binding effect on the subject policy period. But in this case the position is somowhatdifferent, inasmuch as there has been numerous changes in thepolicy over a considerable period, sometime excluding a variety,another time including the game or other varieties, state but allwith a view directed towards regulating the low of edible oil into The country. There is, therefore, reasonable inference that theprovision in Appendix IX are concerned with the edible varietyof oil only". These findings are recorded because of conflict ofopinion between various Collectors. Board was thus fully awareof the experience of importation of oil in this country, anddoubts expressed by som's collectors. I would prefer the considerd opinion of the Board, (which regularly deals with suchmatters), to a mere textual interpretation. ( 133 ). 1 am not satisfied with bare statements, unsupportedby any factual material, in the counter affidavit. The Boardon the other hand, had asserted that the consistent policythroughout was canalisation of edible oils only. I have, therefora, looked to the Annual Reports submitted by the Ministryof Commerce to Parliament from 1977 to 1983. They are within the special knowledge of the respondent. These annual reports give comprehensive data of major items of import eachyear and supplies explanation as to why imports of major itemsincreased or decreased in a given year. The reports also putbefore the Parliament, export position and explains the adversebalance of trade position. The Reports also provides data ofimport and export trade handled by state agencies such asstc. ( 134 ) WHAT is remarkable and unique in all these Reportsis this. None of the Reports mention 'industrial oil as a majoritem of importation at all. Wherever there is a reference to oil,it is expressly made as an 'edible' oil only. ( 135 ) ANNUAL Report for 1976-77 states "the Corporation (STC) at a' short notice arranged import of large quantity ofedible oil for meeting 75 per cent requirements of the Vanaspati Industry. Against the sale of 70,000 metric tons during1975-76, the Corporation sold 2. 7 lakhs metric tones edibleoils during 1976-77, and helped in keeping the domestic priceline under control" (Page 156 ). Against the sale of 70,000 metric tons during1975-76, the Corporation sold 2. 7 lakhs metric tones edibleoils during 1976-77, and helped in keeping the domestic priceline under control" (Page 156 ). The Annual Report for 1977-78states that the imports were particularly heavy in case of edibleoils (Page X ). Of all the major items of import, 'edible oils'topped the list namely 549 per cent increase. (Page 16 ). Asregards STCs performance the report states "edible Oils : Thecorporation has programme for the import of a large quantumof edible! oils in the current year to supplement the domesticproduction and to maintain the internal price level. As of date,the Corporation has signed the contracts for import of 6. 9 lakhtonnes out of which 4. 5 lakh tonnes have already been shipped. Sales of total oils to-date were 4. 3 lakh MT Sales in the corresponding period of last year were 1. 8 lakh M. T. thereby indicating a substantial step-up in the supply of imported edible oils. The imported edible oils are distributed to Vanaspati units allover the country at economic and pre-determined prices so thatthe end-product prices are maintained. The Corporation is alsosupplying through State Govts. edible oils for direct consumption. In order to meet the timely requirements of the Vanaspatiindustry, the Corporation, besides stepping up the over-all storage capacity, has created a number of new distribution points. The total storage capacity has been expanded from 87,000 MTin the beginning of the year to 2. 21 lakh MT (as of date) andin the Northern Zone storage capacity has been expanded from5,000 MT in the beginning of the year to 32,000 MT (as ofdate ). The Corporation is presently meeting 75 per cent of therequirements of the vanaspati industry in the country. Theprices which were fixed on 1/11/1977, are still beingmaintained for the vanaspati industry. ' in spite of a rise in thedomestic oil prices with a view to keeping a check on edible oilprices. Similarly, rapeseed oil prices for direct consumptionthrough State Governments have been. reduced by Rs. 1,000/pmt since 25/08/1977 and the same price is being maintained. The Corporation has, at present, a significant stock ofone lakh MT at different distribution centres. " (page 120 ). ( 136 ) ANNUAL Report for the year 1978-79 expressly statesthat import of edible oil has been. canalised through STC and/the reasons for doing so. reduced by Rs. 1,000/pmt since 25/08/1977 and the same price is being maintained. The Corporation has, at present, a significant stock ofone lakh MT at different distribution centres. " (page 120 ). ( 136 ) ANNUAL Report for the year 1978-79 expressly statesthat import of edible oil has been. canalised through STC and/the reasons for doing so. The report states, there was an increase in imports following the liberalisation of import policyand a need for augmenting the local availability of certain massconsumption items which were in short supply. . . . . . . . . . . . . . . . . . . . . . Subsequent quantities of edible oils had also to be imported tokeep domestic prices under control. Steps have been initiatedto reduce progressively the dependence on imported oils. Onesuch measure was to canalise fhe import of edible oils throughthe STC". (Page VIII ). As to fhe import performance of thestc the report adds, "edible Oils" the Corporation maintainssupplies of edible oils both to the vanaspati industry and fordirect consumption through the public distribution system. Imports of edible oils have been canalised through the STC" (Page83 ). ( 137 ) THE annual Report for the year 1980-81 shows widening gap in the international trade adversely affecting the balanceof trade. "there was also substantial rise in imports of vegetableoils (edible) in terms of both volume and value, which duringapril-September, 1980 stood higher at 6. 42 lacs tons valuedat Rs. 348. 63 crores as against imports of the order of 2. 78 lactons at Rs. 166. 24 crores in the same period last year" (Page22 ). Regarding the performance of STC in importingthe canalised items of edible oil "import turnover at Rs. 894crore during April-December, 1980 was much higher than theimport sales of Rs. 603 crore during the corresponding periodlast year. This increase is mainly due to edible oils fromrs. 426 crore to Rs. 582 crore, newsprint from Rs. 69 crore tors. 96 crore and cement from Rs. 33 crore to Rs. 59 crore. Sugar imports also contributed to the increased import sales tothe tune of Rs. 91 crore. ( 138 ) EDIBLE oils : During the current financial year, oil worthabout Rs. 402 crore have arived (till Dec. 80 ). However duringthe oil year ended 31-10-80, the total imports were 11. 49 lakhmt. 33 crore to Rs. 59 crore. Sugar imports also contributed to the increased import sales tothe tune of Rs. 91 crore. ( 138 ) EDIBLE oils : During the current financial year, oil worthabout Rs. 402 crore have arived (till Dec. 80 ). However duringthe oil year ended 31-10-80, the total imports were 11. 49 lakhmt. ( 139 ) IN line with Government policy supplies of higherquantities of edible oils are being made under Public Distributionsystem. To facilitate movement and distribution of RBD Palmoil, the Corporation entered into finning operations at Porttowns. ( 140 ) TO meet the varied demand. of States arising out oflean and festival season and availability of indigenous oils, thecorporation maintained two months' buffer stock of edible oilsin almost all the States. By this, the prices of edible' oils werekept under control". (Page 109 ). These reports provide following outline on canalisation :1. To meet the domestic shortage the, premier foreign-trading organisation-S. T. C. started imports of large quantities ofedible oil, particularly from 1976-77. 2. For converting S. T. C. into more effective instrument ofbringing about socio-economic changes, canalisation policy wasrequired to be reviewed-Indian Institute of Management,ahmedabad was entrusted with the task of studying and suggesting new directions in canalisation and for achieving the objejctivesof Government in relation to price support, price stability etc. The report was submitted. (Report, 1977-78, page xii ). 3. The Report was accepted by the Government and S. T. C. was given a new role in price support and buffer-stock operationsdesigned to achieve price stability of essential items. (Report,1978-79, p. 84 ). Steps have been initiated to reduce progressively the dependance on imported edible oil. One such measure was to canalise the unport of edible oils through the State Trading Corporation. (Report, 1978-79, p. viii ). 4. Pursuant to canalisation for the new socio-economic goalthe S. T. C. started maintaining buffer stocks, additional storingarrangement and distribution centres all over India. Prices ofedible oil were kept under control. 90 per cent of the requirement of the Vanaspati industry was met by S. T. C. (Report1980-81, p. 109 ). 5. Huge quantities of edible oil was imported in spite ofadverse balance of trade only because of shortage of edible oilin domestic market. 6. There is not even a whisper of canalisation of non-edibleoils in any of the Reports. 7. The Respondent failed to produce any evidence before thecourt. 5. Huge quantities of edible oil was imported in spite ofadverse balance of trade only because of shortage of edible oilin domestic market. 6. There is not even a whisper of canalisation of non-edibleoils in any of the Reports. 7. The Respondent failed to produce any evidence before thecourt. In fairness, the Government was expected to producethe Report of the Indian Institute of Management and the reports of the Monitoring Committee on canalisation. These documents are within the exclusive knowledge and possession ofthe Government. 8. The Special Bench of the Board had observed that onlyedible oil was canalised. The S. T. C. had certified that theywere importing only edible oil as a canalised item (and not industrial oil ). Both these statements were factually correct and aresupported by the Annual Reports. 9. In the light of this factual data, Collector's order holdingthat industrial (refined) oil was canalised through STC is arbitrary and violative of Article 14 of the Constitution-Glassciau, Association v. Union of India, AIR 1961, SC, 1514. . ( 141 ) IN the light of this evidence I will now refer to thehistory of entries from A. M. 1978-79, traced by Sachar, J. Respondent first assumes that entry 'coconut oil' in Appendix 8 of1978-79 Policy includes edible as well as industrial oil. Thisassumption has no basis. In support of this assumption reference is made to Soyabean Oil and Palm Oil and Copra in thatappendix. Then absence of 'coconut oil' in Appendix 10 whereother 'edible oils' are mentioned is also cited a coroborativeevidence. Appendix 8 lays down items which are canalised. Appendix 10 is a list of items which can be imported as O. G. L. Copra in its use in Vanaspati and industrial use is alone canalised. According to Respondent 'copra' is used only for industrial-non-ediblepurposes. How is then used for Vanaspati ?soyabean oil is also canalised for the use of Vanaspati and industrial purpose. If Government was aware of industrial use ofcoconut oil why did it not exppreasly mention the same inrelation to coconut oil? This failure cannot be made good byreferring to other entries which are in positive and clear language. Absence of 'coconut oil in O. G. L. items is of no significance. It only shows that a licence is necessary and nothing more. Theleading 'edible Oils' in App. 10-OGL-does not signify much. This failure cannot be made good byreferring to other entries which are in positive and clear language. Absence of 'coconut oil in O. G. L. items is of no significance. It only shows that a licence is necessary and nothing more. Theleading 'edible Oils' in App. 10-OGL-does not signify much. If Respondent's logic is to be pursued it would mean that 'coconut oil' is not an edible oil at all. This is contrary to the generalsubmission of the Respondent. Palm Oil of all types is mentioned in O. G. L. items. But its refined variety and palm oleineeven for edible purposes is excluded from canalisation list. Thisshows that neither App. 8 nor 10 have any scientific or logicalbasis. The reasoning of the Respondent completely breaksdown if we refer to entry 57-Appendix 8 in 1979-80 Policy. All oils, now mentioned as canalised and OGL in our case, findplace in that entry. They are mentioned simplicitor withoutmention of edibie or industrial use as in A. M. 1978-79 Policy. It shows that there is no consistent or continuing policy in regard to canalisation. Significantly, none of the oils are mentioned in O. G. L. item in 1979-80 Policy. Here also the Respondent's reasoning fails. But a third pattern emerges inour relevant year A. M. 1980-81. Now, all the said oils areomitted from Appendix 8 or Appendix 10. They are includedin Appendix 9. And the entry speaks of canalisation throughs. T. C. as O. G. L. item. The only conclusion from these diversepatterns in regard to coconut oil is this--In 1978-79 it was notan O. G. L. item while many other oils were-In 1979-80 noneof the oils, including coconut oil, was on O. G. L. List while in1980-81, all oils including coconut oil came on O. G. L. list. Byno legal inference can entry "coconut oil" be interpreted tomean industrial coconut oil in any of these years. ( 142 ) NOW if the Respondents reasoning is correct, why ina. M. 1981-82-words "edible-and non-edible" are used. Thisis not done only in regard to coconut oil but all oils. "abundantcaution" is an after thought. The reason appears to be thatin the earlier years the edible and industrial varieties were indiscriminately mentioned. Perhaps, it was also realised by theauthorities that non-edible industrial oil was being imported insufficient quantities and the canalising agency. S. T. C. would earnadditional revenue if non-edible varieties are also canalised. "abundantcaution" is an after thought. The reason appears to be thatin the earlier years the edible and industrial varieties were indiscriminately mentioned. Perhaps, it was also realised by theauthorities that non-edible industrial oil was being imported insufficient quantities and the canalising agency. S. T. C. would earnadditional revenue if non-edible varieties are also canalised. Government has appointed Special Monetary Committee for canalisation and its review. It was, therefore. . the duty of the Respondent to produce the relevant data and the findings of themonitoring Committee on canalisation. It was also necessaryto produce such evidence because of a definite reason for canalisation of edible oil only, furnished by the Government to Parliament in the Annual Reports. In stead of doing so, the Respondent has half-heartedly tried to justify its plea by textual interpretation of the poilcy statements. It is half-hearted becausethis plea was taken only in the written submissions of the respondent submitted before Justice Anand, when he was hearingthese petitions. No argument on this basis was advanced beforeus by the counsel for the respondent. Naturally, the petitionerdid not have any opportunity to meet the above submissions ofthe respondent. Before us, only petitioner has filed his writtensubmissions. None wers filed by the Respondent. ( 143 ) PROHIBITIONS imposed by subsequent policies :an alternate argument it is submitted by the respondentthat the importation by the petitioner was illegal because ofbreach of conditions imposed in the licence in terms of subsequent policies. Petitioner held letters of authority for validlicences under Section 3 of the Order issued for A. M. 80-81. Petitioner is an export house and is, therefore, entitled to importfacilities available to Export Houses under para 174 of A. M. 80-81. /l74 (iii) entitles the petitioner to "imports of itemson Open General Licences in the manner set down here-under. "para 174 (iv) allows "additional Licences as provided hereunder". Under para 177 (5) Additional Licences are given further facilities as under :"the Additional Licences will also be valid for import ofraw materials. component, spares (excluding thosecovered by App. 5) which have been placed underopen General Licences. "raw Materials, components and spires are the exact items ofapp. X, item 1. Thus by virtue of para 174 (iii) read with para177 (5), petitioners were entitled to import raw material in thiscase industrial coconut oil- -which is a raw material formanufacture of soap, shampoo etc. The source of entitlement isthe said paras and App. "raw Materials, components and spires are the exact items ofapp. X, item 1. Thus by virtue of para 174 (iii) read with para177 (5), petitioners were entitled to import raw material in thiscase industrial coconut oil- -which is a raw material formanufacture of soap, shampoo etc. The source of entitlement isthe said paras and App. X of policy for AM 1980-81 itself andno other. These continued in 1981-82 and -1982-83. ( 144 ) THE. licences in favour of the petitioner were revalidated twice-but each time for six months only. Letters of credit were opened on 31-7-1982. The goods arrived in Kandlaport on 10-9-1982. If policy of AM 1980-81 alone is to beapplied, importation is within the revalidation period plus graceperiod of two months: ( 145 ) ACCORDING to the Collector, however, by virtue of publicnotice dated 25-2-1982-"import of O. G. L. Item by export houses shall be subject to condition that the shipment of goods shalltake place within the validity of Open Generallicence, i. e. , 31/03/1982 or within the validityperiod of licence itself (without any grace period)whichever date is earlier. "this condition is applicable to all licences including Additional Licences. The Collector held that petitioner's importwas admittedly after 31/03/1982 and was, therefore, aprohibited import. The public notice "clarified" that para185 (3) of 1981-82 was applicable to Additional Licences forthe first time. Para 185 (3) of AM 1981-82 put the abovecondition of importation (prior to 31/03/1982) on thelicences issued prior to 1-4-1981. There was no such provisionin 1980 Policy. ( 146 ) NOW, in terms, para 185 (3) is not applicable in thepresent case. Para 185 speaks of replenishment licences, similar to para 176 of the 1980-81 policy. Sub-pan (3) to para185 is an amendment to the earlier provisions, which had onlytwo paras. Para 185 is not applicable to Additional Licences. Provision applicable to Additional Licences in para 186. Thiscorresponds to Para 177 in 1980-81 Policy. Permission to import raw material as on OGL item was given to the petitionerunder para 177 (5) of 1980-81 policy. Exactly identical provision, without any change, is made-para 186 (7) of the 198182 policy. Assuming the condition to be applicable, it canoperate only prospectively viz. for licences issued after 1/04/1981 and not before. Export Policy is an administrativeinstruction and it cannot be given retrospective effect as in caseof a statute. Exactly identical provision, without any change, is made-para 186 (7) of the 198182 policy. Assuming the condition to be applicable, it canoperate only prospectively viz. for licences issued after 1/04/1981 and not before. Export Policy is an administrativeinstruction and it cannot be given retrospective effect as in caseof a statute. As a condition of revalidation, para 185 (3) wouldamount to amendment of the licence issued under the statutoryprovisions of Section 3 of Import (Control) Order, 1955. Section 7 of the Import (Control) Order 1955, permits an amendment of a licence only to "make such licence conform to theprovisions of the Act or this Order", and not to destroy or capitulate it. There is another serious objection. The Collectorhas held that public notice which made para 185 (3) applicableto additional licences has retrospective operation. He hastreated it as statutory provision. This is a grave error of lawon the face of the record. Public notices are executive instructions and they cannot be given retrospective effect. The saidconditions and restrictions were imposed at. the time of revalidation in the present case. The period of validity means theperiod of shipment/ despatch permissible for goods concerned. Export Houses are required to keep the period of shipment flexible. They have no control on the circumstance abroad. Shipments may be delayed because of short supply, strike etc. Para199 of the Hand Book of Import Export procedure 1980-81lays down that if revalidation is for a period not exceeding sixmonths no conditions can be imposed on revalidation. Petitionerhad requested revalidation for period of six months and not fora longer period at any time of revalidation. They were in factvalidated for six months each time. Imposition of conditions wascontrary to para 199, also. 1979-80 Hand Book (para 70 ofchapter vi) permitted revalidation on condition of conformitywith current Import Policy. This provision was deleted in the1980-81 policy. Therefore, conditions of 1981-82 or 1982-83policy cannot be imposed on licence under 1980-81 Policy. ( 147 ) APART from these infirmities. the conditions of revalidstion are arbitrary and unreasonable. In similar cases ofimportation, by petitioner himself and other traders, import wasnot held to be prohibited either by virtue of para 185 (3) orpublic Notices. So also to hold that in AM 1981-82 and AM 1982-83 industrial coconut oil was canalised and, therefore, in September, 1982 when the present import was made, is contrary tolaw and arbitrary. In similar cases ofimportation, by petitioner himself and other traders, import wasnot held to be prohibited either by virtue of para 185 (3) orpublic Notices. So also to hold that in AM 1981-82 and AM 1982-83 industrial coconut oil was canalised and, therefore, in September, 1982 when the present import was made, is contrary tolaw and arbitrary. Conditions in revalidated licences or subsequent Import Policies cannot create a prohibition for licencesissued earlier. It is arbitrary because no such prohibition wasimposed on the importation in May, 1981, July 181 andjanuary, 1983 in regard to other imports. ( 148 ) IN Liberty Oil Mills, the Supreme Court has noted theprinciple followed by the Central Government and the Centralboard of Excise and Customs (in re : Arvind Exports (P) Ltd. and Jayant Oil Mills (P) Ltd.) that the licence issues during thepolicy period is governed by that policy as amended upto thedate. of the issue of licence and amendments made after thedate of issue do not have any application to the licences. Thedecision of the Supreme Court in Hazari Lal's case (1971) 3s. C. C. p. 840 (67) does not derogate from this well establishedprinciple. This is so, for the simple reason that subsequent import policy cannot have retrospective effect as they are nonstatutory in character. I have already shown how even otherwise the import policies of A. M. 1981-82 and 1982-83 had notcreated any prohibition for the import of raw material importedby the petitioner on the basis of 1980-81 licences. ( 149 ) SAME is the case with the public notice issued In February, 1982 whereby para 185 (3) was made applicable to additional licences for the first time, by the said public notice. Ineast India Commercial Company v. The Collector of Customs (AIR 1962 S. C. p. 1893) the Supreme Court has laid downthat the import control hand-book or the public notices are notstatutory in character and, therefore, cannot impose any conditions on the licence issued under section 3 of the Import Controlorder. The same principle was reiterated by the Supreme Courtin J. C. C. of Imports and Exports v. M/s. Amin chand ( AIR1966 S. C. 478) at page 488) (68 ). It was held that theprohibition imposed by subsequent policy change is no prohibition because it is not issued under section 3 of the Imports andexports (Control) Act of 1947. The same principle was reiterated by the Supreme Courtin J. C. C. of Imports and Exports v. M/s. Amin chand ( AIR1966 S. C. 478) at page 488) (68 ). It was held that theprohibition imposed by subsequent policy change is no prohibition because it is not issued under section 3 of the Imports andexports (Control) Act of 1947. The principle was further recognised by the Supreme Court in M/s. Oswal Woollen Millsltd. v. Union of India (AIR 1983, S. C. p. 969) (69 ). ( 150 ) IT was further held by the Supreme Court that theconditions subsequently imposed on the licence, being nonstatutory, cannot be treated as prohibitions imposed by theimport and Export (Control) Act, 1947 and Customs Act. Therefore, confiscation orders are without jurisdiction. Eastindia Commercial Co. ( AIR 1962 SC 1893 ). This principlewas reiterated by the Supreme Court in Civil Appeal No. 801of 1964 decided; on 10/01/1967 in the case of M/s. Jagannath Agarawala v. Shri B. N. Dutta and Ors. See also Additional Collector Customs v. Sen and Co. ( AIR 1971 SC 170 ). A distinction has been attempted by the Respondent between the conditions imposing restrictions rendering the licence (itself) invalidfor their breach and conditions which put restrictions on thedisposal of goods after their valid importation. It is arguedthat in the present case the licence itself was rendered invalid forimportation in question and thus there was a breach of Section11l (d) of the Customs Act, 1962. To my mind, the distinctionsought to be made by the Respondent cannot be read in section 11l (d) of the said Act. Section 11l (d) reads-"the following goods brought from a place outside Indiashall be liable for confiscation :- (d) Any goods which are imported or attempted to beimported or are brought within the Indian Customswaters for the purpose of being imported, contraryto any prohibition imposed by or under this Actor any other law for the time being in force. "the Section speaks of "prohibitions". All conditions imposedon a licence amount to prohibition if it is shown that they areimposed by or under the Act. There is no further classificationsof prohibitions envisaged by the said sub-section. The Supremecourt Cases cited above also do not make any distinction between the conditions as suggested by the Respondent. "the Section speaks of "prohibitions". All conditions imposedon a licence amount to prohibition if it is shown that they areimposed by or under the Act. There is no further classificationsof prohibitions envisaged by the said sub-section. The Supremecourt Cases cited above also do not make any distinction between the conditions as suggested by the Respondent. ( 151 ) THE petitioner had argued that it had vested right toimport the goods which are not prohibited on valid licences. The respondents have countered this argument by relying upondy. Assistant Iands Controller v. K. M. Corporation (AIR 1972,s. C. 935) (70 ). I do not think that the said decision is ofany assistance to the Respondents. In that case the questionwas whether the Government could refuse grant of licence tothe Respondents even after the filing of the application andsponsored by a sponsoring authority under Import and Exportcontrol Act. The Supreme Court held that there is a statutorypower in clause 6 (1) of the Import Control Order to refuse togrant a licence. The Court also found that delay in the disposal of the application was not unreasonable. thus it maybe seen that the ratio of the case has no application to the factsof the present case. The petitioner already held valid licences,and they were validated twice. The licences were granted undersection 3 of the Import Control Order. The petitioner had,therefore, a vested right to import the goods on the said licences,unless there were statutory provisions to the contrary. In Supertraders (1983 E. L. T. 258) this Court held that there is novested right in importation because Government is free to makestatutory and policy changes even during the currency (if Import year. The real question is this. Where no statutory orpolicy change is made in a given Import Year or period, whetherin importer has no right to expect that the goods for whichhe holds a valid licence can be imported? And whether such aright can be denied by applying subsequent policy or publicnotice ? The decision does not render any assistance to therespondent. The Collector has then referred to para 222 (1), 222 (2) and224 (4), mentioned in the revalidated licence to show that therewas a prohibition to import industrial oil as raw material. Thereis no discussion or analysis of these provisions in the Collector'sorder. The decision does not render any assistance to therespondent. The Collector has then referred to para 222 (1), 222 (2) and224 (4), mentioned in the revalidated licence to show that therewas a prohibition to import industrial oil as raw material. Thereis no discussion or analysis of these provisions in the Collector'sorder. We are concerned with importation of raw material byvirtue of para 177 (5.) import Policy tor AM 1980-81 and corresponding provisions in AM 1981-82 Policy. It may be noted thatpara 222 (3) is not mentioned on the licences and, therefore, outof way. That sub-para creates a general embargo on importationof O. G. L. items which were applicable in 1980-81 but not continued in para 1981-82. Sub-paras (1) and (2) speak of items metioned in App. 5, 7 and 26. Sub-para (1) states that only items mentioned in said paras and continued in 1981-82 can be imported. Sub-para (2) gives additional benefit of new items added tothe said appendices in 1981-82. Para 222 (4) is an exception topara 222 (1 ). Prohibition on items otherwise than mentioned inthe said appendices is released in case of raw materials, components etc. Para 222 (4) reads "additional licences is issued to export houses during1980-81 will also be valid within their overall value,for import of raw materials, components, consumablesand spares (excluding the items covered by App. 5)which can be imported under Open General Licenceby Actual Users (lndustrial) under Import Policy1981-82. " ( 152 ) "thus to say that there was prohibition to import industrial oil as a raw material is wrong and contrary to the policy. Provisions of sub-paras of Para 222 contemplate different contingencies and lumping them together, as is done in the presentlicences, is a mindless exercise. Para 222 (1) docs not control para222 (4 ). Statutory O. G. L. Order ( 153 ) FACED with the difficulty that the alleged conditions inthe licences, including those created by the said public notice, are non-statutory and would not amountto breach of section 3 of the Imports and Exports (Control) Act,1947. the counsel for the Respondent made a novel argument. He argued that the statutory O. G. L. Order No. 7180 dated 1 5/04/1980 (and similar orders issued in subsequent years)imposed prohibition on Imports, as regards items anil period ofimportation. the counsel for the Respondent made a novel argument. He argued that the statutory O. G. L. Order No. 7180 dated 1 5/04/1980 (and similar orders issued in subsequent years)imposed prohibition on Imports, as regards items anil period ofimportation. The said order gave general permission to importinto India any raw materials, compnents arid consumables byactual Users (Industry), subject to the following conditions: (1 ). The items to be imported are not covered by Appendices 3, 5, 6, 7, 8, 9 and 15 of the Import Policy,1980-81: (15 ). Such goods are shipped on through consignment toindia on or before 31/03/1981 or on or before30-6-1981 against firm orders for which irrevocableletters of credit are opened on or before 28-2-1981,without any grace period what-so-ever;. (16 ). Nothing in this licence shall affect the applicationto any gods, or any other prohibition or regular ionaffecting the import thereof, in force at the timewhen such goods are imported. ( 154 ) A condition similar to Condition 15 was imposed byo. G. L. Order I of 1981 dated 3-4-1981. The said condition required that importation should be made before 31/03/1982or before 30th of June, 1982, without any grace period. ( 155 ) IT must be pointed out that the said statutory O. G. L. Orders were not relied upon by the Department before the Collector, nor the Collector, in the impugned order, has held thatimport in question was illegal for the violation of the said orders. The argument of the respondent is that all prohibitions imposedby the said orders on Actual Users are applicable to exporthouses because they are also required to sell the imported goodsto actual Users. Now, bare reading of Import Policy Publication will show that Actual Users and export houses are treatedas distinct and separate classes for the purposes of facilities ofimport. It is the chief anchor of foreign trade probably to vigorously promote exports and to have a favourable balance oftrade. Chapter 18 of A. M. 1980-81 makes special provisions. for Export Houses. Para 164 slates that special facilites aregiven to Export Houses to strengthen their capacity in foreigntrade and to build up a more enduring relationship between themand their supporting manufacturers. Para 174, amongst otherthings, include replenishment licences, (REP), additional licencesand special permission for "import of items placed on the "opengeneral Licence" as special facilities for Export Houses. for Export Houses. Para 164 slates that special facilites aregiven to Export Houses to strengthen their capacity in foreigntrade and to build up a more enduring relationship between themand their supporting manufacturers. Para 174, amongst otherthings, include replenishment licences, (REP), additional licencesand special permission for "import of items placed on the "opengeneral Licence" as special facilities for Export Houses. Para177 (5) permits additional licences for importation of raw materials, which have been placed on Open General Licence for Actualusers (Industrial ). It may be noted that such importation of rawmaterial is not fettered by any conditions. As against this. Chapter VI of the said policy makes separate provisions for importof raw material, components, consumables and spares by Actualusers (Industrial ). Para 23 (1) in the slid Chapter speaks of importation on Open General Licences. It is stated that the Actual Users "will be allowed to import under Open Generallicence, subject to specified conditions applicable thereto". Thesaid para 23 (1) makes it further clear that the statutory O. G. L. Orders are applicable only to the Actual Users because conditions can be prescribed only for the Actual Users. A longerperiod of validity of imports and their shipment period is necessary for the Export Houses, because of the trade difficulties inthe foreign countries and in India, which are beyond the controlof the Export Houses. If import policy is subjected to frequentchanges and they are imposed on licences already issued, it willbe difficult for the foreign exporters and importers to make anyfirm commitments either in supply or prices. This will not strengthen the negotiating capacity in foreign trade but will weakenit. It would also the enduring relationship of durable tradebetween the Indian traders and their counter-part in. the foreigncountries. In fact, the re-validation of licences to subsequentperiods of import policy are done with these objects. Sale by anexport house to an Actual User is one side of the coin. Theothter is the export promotion made by the Export House. Onecannot be separated from another. Importers, including Actualusers, actually spend the limited foreign exchange. An Exporthouse, on the other hand earns additional foreign exchange! forthe national economy. This is the rationale in treating them asdistinct classes. It is thus clear that the prohibitions, if any, inthe O. G. L. Orders are not applicable to Export Houses usingadditional licences. There is another reason for this conclusion. O. G. L. is a general permission. An Exporthouse, on the other hand earns additional foreign exchange! forthe national economy. This is the rationale in treating them asdistinct classes. It is thus clear that the prohibitions, if any, inthe O. G. L. Orders are not applicable to Export Houses usingadditional licences. There is another reason for this conclusion. O. G. L. is a general permission. It is not subjected to normallicensing requirements and procedures. Naturally, the conditionsare required to be imposed in the statutory order itself. Thereis no licence (in the normal sense) on which the conditions canbe imposed. As against this, Export Houses are required to obtain licences such as REP Licence or additional licence. Thelanguage of 174 (3), 176 and 177 (5) is very clear. It is stated thatthe import can be made of the items placed on the Open General Licences or raw materials. Which have been placed on theopen General Licence for Actual Users. The said provisions donot say that raw materials can be imported subject to the conditions mentioned in the statutory O. G. L. Oders. A reference tostatutory O. G. L. Orders is only for the purposes of finding outwhat items are placed in the list of O. G. L. Condition No. 1 andno. 15 quoted above do not, as such, impose any prohibition. It is a general permission in regard to items not covered by certain appendices and the period within which import' should bemade. I have already held that Industrial Coconut Oil did notfall within Appendix 9. It falls under Appendix 10. Conditionno. 15 is obviously not applicable to revalidation done-subsequent to the dates mentioned therin. If statutory O. G. L. Orderswere applicable in the present case, there was no necessity torefer to conditions imposed on revalidated licences, or invokingpara 185 (3) of the said public notice to read prohibition, asis done by the Collector. The submission of the Respondentthat the import in present case was contrary to statutoryo. G. L. Orders is untenable in law. ( 157 ) A licence is subject to the import policy of the year ofissue and not subsequent policies and unless there are statutoryorders to the contrary O. G. L. statutory order, are not applicablein the present case, and prohibitions, if any, mentioned in it areapplicable only to the Actual Users and not to the petitioner. ( 157 ) A licence is subject to the import policy of the year ofissue and not subsequent policies and unless there are statutoryorders to the contrary O. G. L. statutory order, are not applicablein the present case, and prohibitions, if any, mentioned in it areapplicable only to the Actual Users and not to the petitioner. Imposition of conditions or prohibitions not in conformity withthe Import Control Order or the Act are illegal and should heignored. Special Bench of the Board had cleared the goods evenafter the 1982 O. G. L. Order was issued. None of the authoritiesunder the Act, including the Collector in the present case, hadapplied the statutory O. G. L. orders to Export Houses and to additional licences. There was a valid importation under a validlicence. Show cause notice and confiscation, orders are contraryto law and illegal. They are, therefore, set aside. ( 158 ) THE counsel for the Respondent, however, submits thatthe petitioner has availed of the exemption of duty under notification issued by the Central Government under sub-section (1) ofsection 25 of the Customs Act, 1962, on 1. 11. 1976. The exemption is from the tarrif mentioned in para 15. 07 of the Customstarrif Act, 1975. The duty payable under the said Notificationis 40 per cent ad valorem on "coconut oil (refined)". Brothersachar has held that claiming benefit of the said notification bythe petitioner amounts to his acceptance of the fact that industrial coconut oil is also covered by the expression "coconut oil". With respect, it is difficult to agree with this conclusion. The saidnotification was issued to give statutory affect to Bangkok Agreement on Trade Negotiations among developing countries of theescap. The Agreement had become operative from 17/06/1976. One of the' principle objects of the Bangkok Agreement wasto give tarrif concessions for imports from five countries, namely,bangladesh, Laos, Republic of Korea and Sri Lanka on reciprocalbasis between the States (Annual Report 1976-77. Governmentof India, Ministry of Commerce-Page 102 ). It may be noted thatimports in the present case were made from Sri Lanka. Any importer who imported the goods from Sri Lanka was entitled tothe said exemption. No special exemption was given to the petitioner. Apart from this, the entry in the exemption notificationis coconut oil (refined ). The petitioner claimed exemption as arefined coconut oil because he had disclosed in the bill of entrythat the imported oil was "refined industrial coconut oil". Any importer who imported the goods from Sri Lanka was entitled tothe said exemption. No special exemption was given to the petitioner. Apart from this, the entry in the exemption notificationis coconut oil (refined ). The petitioner claimed exemption as arefined coconut oil because he had disclosed in the bill of entrythat the imported oil was "refined industrial coconut oil". Theentry in the exemption notification merely refers to coconutoil similar to the relevant O. G. L. entry in the present case. When the entry in the exemption notification refers to the refined oil, it only means that non-refined or raw oil would notbe entitled to exemption. The meaning of entries does notchange by acceptance or rejection of it by any private partyor even by Government. What is more important is not thetextual meaning of coconut oil but the question of fact as towhich variety was canalised in a given import year. This question of fact depends upon the evidence. What tariff is payableby an item has no relevance to the question whether the itemwas canalised or not. So also broad description of an itemin Tariff, such as 1507, has a different purpose. In taxing statute the Legislature uses as general language as possible, becausethere can be no taxation without law. Questions regarding importation and canalisation are decided on policy considerationat a given time. The submission of the respondent is rejected. ( 159 ) PRELIMINARY objections :i will now deal with the two preliminary further consideredobjections. The first is that this court has no territorial jurisdiction. as importation of oil in question was at Kandla Port, Gujarat. The other objection is that there is an equally efficaciousremedy by way of an appeal to the appellate tribunal establishedunder Section 129 of the Customs Act. That Act was amendedby Finance Act 2 of 1980 whereby a separate procedure of appeals and reference has been created. The appellate tribunal wasestablished on 11-10-1982. A connected submission of the Respondent is, that by resorting to the writ remedy the petitionerhas deprived the Respondent of its statutory right to support thecollector's order on other grounds in an appeal under sectionl29 (A ). Brother Sachar has rejected these preliminary objections. I agree with him. But there are some additional reasons why thepreliminary objections are to be rejected. Brother Sachar has rejected these preliminary objections. I agree with him. But there are some additional reasons why thepreliminary objections are to be rejected. ( 160 ) TERRITORIAL Jurisdiction :apart from the fact that the policy is framed by the Ministryof Commerce at Delhi, the office of the Chief Controller ofimports and Exports is at Delhi. The confidential D. O. issued bythe Joint Controller in September, 1982 was from Delhi. Subsequent instructions including withholding of the clearance ofthe consignment were issued from Delhi. I have already heldthat the impugned order is not the order of the Collector,ahmedabad. It was passed. it the dictates and behest of the Jointcontroller and his office which is at Delhi. The public notice inquestion was also issued from Delhi. This court has, therefore,territorial jurisdiction to hear the writ petition. ( 161 ) ALTERNATE remedy :writ jurisdiction in certiorari is a constitutional jurisdiction. Amendments to Customs Act by Finance Act No. 2 of 1980would not oust the jurisdiction. I have already held that the Collector's order was without jurisdiction, was perverse and contraryto the principles of natural justice. I have also held that the saidorder violates Fundamental Rights of the petitioner under Articles 14 and 19 (l) (g) of the Constitution. A more appropriateremedy, therefore, is the Extraordinary remedy of writs'. Preference for alternate remedy is a rule of discretion and convenience, not on eaffecting jurisdiction. The Writ Petition wasadmitted on 18-1-1983 and final hearing was expedited. It washeard by one Judge for five days and by anoher for fourteendays. The matter was taken to Supreme Court for the transferof these petitions. The Supreme Court initially transferred thesepetitions to Rajasthan High Court so that they could be disposedof expeditiously. After learning that tha writ petitions were already set for final hearing before our Bench, the Supreme Courtrecalled the earlier order. One reason for early disposal was thatheavy fine of Rs. 5 crores has been imposed upon the petitioner. But by the time we could hear the matter, about two years haveelapsed. The petitioner cannot now be sent to the Appellatetribunal where the remedy of appeal is barred by limitation. For all these reasons the discretion has to be exercised in favourof the petitioner. The preliminary objections are, therefore,rejected. ( 162 ) THERE is no merit in the Respondent's submission thatthey are deprived of some right, allegedly traceable to section129 (A ). The petitioner cannot now be sent to the Appellatetribunal where the remedy of appeal is barred by limitation. For all these reasons the discretion has to be exercised in favourof the petitioner. The preliminary objections are, therefore,rejected. ( 162 ) THERE is no merit in the Respondent's submission thatthey are deprived of some right, allegedly traceable to section129 (A ). I have held that the Collector's finding is without anyevidence. The Department had not produced any data before thecollector or even before this Court to show that industrial oilwas also being imported by S. T. C. as a canalised item or thatthere was any such policy. Respondents cannot be permitted tocreate new evidence and support the order of the Collector. Theviolation of natural justice, particularly the surrender of the judicial decision-making by the Collector, in favour of the Joint Controller and his office, cannot also be cured in appeal. So is thecase with breaches of Fundamental Rights. The Joint Controllerissued the Confidential instructions and suspended the release ofpetitioner's consignment in September, 1982. He and his office,know that the Appellate Tribunal was being set up shortly. Perhaps, the office of the Chief Controller of Imports and Exports,itself fixed 11/10/1982 as an appointed date for theestablishment of the Appellate Tribunal. The ostensible reasonfor the confidential directions issued by the Joint Controller waslarge scale import of oil from Singapore. The petitioner had notimported oil from Singapore but from Sri Lanka. If the petitionersubmits that the Joint Controller gave these directions to nullifythe effect of the order of the Central Government passed undersection 131 of the Act, can it be held to be too unreasonable?the counsel for the Respondents read out to us the statement ofthe Finance Minister to explain why the Appellate Tribunal wasbeing set up. It was said by the Finance Minister that thepresent authorities under the Act were working objectively,but it is necessary that justice must not only be done but seento have been done. If the Appellate Tribunal is to faithfullylive upto the expectation of the Government. I do not thinkthat it will be able to come to a conclusion different from thatof the Central Government and the special Full Bench of theboard, I do not think that the respondent can complain of anyloss of right of appeal. If the Appellate Tribunal is to faithfullylive upto the expectation of the Government. I do not thinkthat it will be able to come to a conclusion different from thatof the Central Government and the special Full Bench of theboard, I do not think that the respondent can complain of anyloss of right of appeal. It is asserted by the petitioner that in caseof M/s. Jain Oil Mills and Metro Exporters, whose consignmentsof industrial oil of 5000 M. T. each, were cleared by thecollector of Customs on 12-1-1983, no appeal was preferred bythe Department. This assertion was not contradicted by the respondents at the time of the arguments. The appellate tribunalhad already come into existence by that date. ( 163 ) THE Respondent has accused the petitioner of deliberately preferring the writ remedy so as to disable it from fullyavailing its right of appeal before the Appellate Tribunal. Thisargument has impressed by my two brother Judges. On thecontrary the petitioner accuses the Respondent of a deliberatedesign to by pass the order of the Central Government and toavail of the new forum to improve upon its original case. I donot think that the question of the Jurisdiction of this court (andthe alternate remedy) can be and should be resolved by thesemutual accusations. The Respondent has contended that theyare deprived of the right to show on merits that the order of thecentral Government in revision was wrong. They also say :"the petitioners had sought to preclude the respondentsfrom contending such questions as were not decided by the Collector. "i think that these contentions are contrary to law and arebased on misunderstanding of the powers and functions of the new tribunal. It is prepostrous to say that the Governmentshould be given an opportunity before an Appellate Tribunalto contend the questions which were not even decided by thecollector. So also the order of the Central Government in revision, which has acquired finality in law, cannot be re-openedeven before the new Tribunal. The new Appellate Tribunalhas been established not only to ensure objectivity and impartiality but to demonstrate through its actions that it was doingjustice and fair-play. I he Triounal consists of the judicialmembers which are drawn from toe Juaicial and Legal Service. There are also Experts called the Technical Members. Objectivityand rationality are the mam characteristics of any expertopinion. The new Appellate Tribunalhas been established not only to ensure objectivity and impartiality but to demonstrate through its actions that it was doingjustice and fair-play. I he Triounal consists of the judicialmembers which are drawn from toe Juaicial and Legal Service. There are also Experts called the Technical Members. Objectivityand rationality are the mam characteristics of any expertopinion. The Technical Members should enrich the Judicialtribunal) with their experience in diverse fields and the scientificmethods of analysis. Thus, powers and functions of the Appellate Tribunal is a combination of scientific objectivity and judicial impartiality. But the technical experts, while judging thematters must, follow the common trade meaning and practices. Both the Judicial Members and the Technical Members mustwork in unison to ensure fair-play in the final determination. That should apply even to the Benches that are constituted fordeciding various matters by the Tribunal. Where data is moretechnical and factually complex, there should be more representation of Technical Members on the Bench. But where it isnot so and particularly where legal interpretation is involved,the Benches should have larger number of Judicial Members. Why is it necessary ? By its action and conduct the Tribunalmust demonstrate to lay public that fairplay is ensured andjustice is done. To the extent the litigating public would heable to see the fairplay in action, the public confidence wouldincrease. The object of the amending Act, in constituting thetribunal, is not to take away the judicial control of the Highcourts but to make the Tribunal itself a pronouncedly judicialbody, in which litigating public can repose confidence as incase of High Courts. ( 164 ) THE Appellate Tribunal is very young has just completed two years. Some of the judgments of the Tribunal raisea strong hope that it will succeed in creating confidence amongstthe litigant public. In Atma Steels (P) Ltd. v. Collector ofcentral Excise (1984, ELT, page 331) (71 ). one of the questions was whether the Presideent of ths Tribunal has legal competence to constitute a large Bench of five members forresolving conflicting views/decisions of different Benches of thetribunal. The Tribunal asserted that it will follow the judicialpractice of the superior courts, such as High Courts and Supreme Court. one of the questions was whether the Presideent of ths Tribunal has legal competence to constitute a large Bench of five members forresolving conflicting views/decisions of different Benches of thetribunal. The Tribunal asserted that it will follow the judicialpractice of the superior courts, such as High Courts and Supreme Court. It was held :"the scheme of the Act as indicated by sub-section 3of Section 129, unmistakably is to ensure a unifiedand -integrated approach in matters relating to classification as well as rate of duty and valuation, whichneed has been felt because of different Collectorsworking in separate jurisdictions and because of theimportance of these matters both to the assessee aswell as revenue. Removal of uncertainties has tobe the guiding principle, for every judicial or quasijudicial system, which approach is reflected in thepractice in the Supreme Court as well as Highcourts, of reference of general matters of importance to larger Benches, which procedure is extended to cases of conflicting decisions also. "the Tribunal relied upon J. D. Patel v. Union of India (1978 and ELT page 540) (72), a decision of the Division Benchof Gujarat High Court. It may be noted that the order of thecentral Government in revision and the Special Bench of theboard in our case precisely achieved the same purpose of, unified, and integrated approach and removal of uncertainties. ( 165 ) RELIANCE on J. D. Patel v. Union of India, is importantfor another reason. Because, that decision endorses the principle of judicial discretion laid down by the Bombay High Courtand Madras High Court. The learned Judges of the Gujarathigh Court held "as a matter of law the earliest decision of the Divisionbench of the Bombay High Court in Manek Lalchunnilal (1953, 24 ITR, page 375) is binding onus. Apart from it, we are in respectful agreementwith the salutary practice and the policy that intaxation matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the interest of uniformity and consistancy inmatters of application of taxing statute so as toavoid the challenge of discrimination in applicationand administration of tax matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the interest of uniformity and consistancy inmatters of application of taxing statute so as toavoid the challenge of discrimination in applicationand administration of tax matters. "in Manek Lal's case the Bombay High Court had held :"whatever our own view may be, we must accept theview taken by another High Court (Madras) onthe interpretation of the section of a statute whichis an all-India statute. "this rule for the exercise of judicial discretion by authorities of co-equal powers, is directly applicable to the decision ofthe Central Government in revision and the new Appellatetribunal. ( 166 ) BUT Mukund Engineering Works v. Collector of Central Excise, Ahmedabad (1983) E. L. T. page 816), a decision ofthe three-members Special Bench of the Tribunal, hits the nailon the head. ( 167 ) THE question for the decision of the Tribunal was whether the Collector of Central Excise, Ahmedabad, was right inimposing additional duty on the appellant by classifying Jockeypulleys under Item 49 of the Central Excise Tariff. In similarcases, the Central Government in the revision had held thatthe goods are covered by item 68 of the tariff. A show causenotice was issued by the Superintendent, Central Excise. Surendera Nagar, to the appellant as to why additional duty on thebasis of item 49 of the Tariff (Rolling Bearings) should not becharged. The Assistant Collector accepted the appellant's explanation that the proper classification was under Item 68 anddropped the proceedings. B. V. Kumar, the Collector of Central Excise, Ahmedabad, reviewed the order of the Assistantcollector, purporting to act under Section 35a. The Collectorrelied upon certain Trade Notices and Tariff Advices. Thecollector set aside the order of the Assistant Collector and imposed additional duty on the appellant. On that basis furtheradditional demands were raised by the Superintendent, Centralexcise. The appellant filed a writ petition in the Gujarat Highcourt challenging the order of the Collector and further additional demands. The High Court directed the appellants toprefer revision to the Central Government and granted interimstay of recovery. The appellant preferred a revision application. When the revision was pending before the Central Governmentthe present Tribunal came into being on 11-10-1982. The revision application was, therefore, transferred to the Tribunal fordecision. The High Court directed the appellants toprefer revision to the Central Government and granted interimstay of recovery. The appellant preferred a revision application. When the revision was pending before the Central Governmentthe present Tribunal came into being on 11-10-1982. The revision application was, therefore, transferred to the Tribunal fordecision. A three member special bench of the Tribunal heardthe matter. The Tribunal found that the Trade Notices andthe Tariff Advices, referred to by the Collector, had no application and the Collector was not right in classifying the goodsunder Item 49 of the Central Excise Act. The Tribunal alsoheld that the Collector was wrong in relying upon I. S. I. specifications for the said classification. The Tribunal observed :"for determining whether Jockey Pulleys are bearingsfor the purpose of levy of excise duty reference toisi definitions may not be strictly justifiable. Besides, in the show cause notice given to the petitioners, there was no reference to ISI definitions, therefore, Collector could not base his decision on ISIdefinitions. "the Tribunal then held :"the Collector's findings that Jockey Pulleys are knownas bearings in the trade is not supported by anyevidence; on the other hand, the appellants hadplaced sufficient evidence before the Collector asmentioned above which we find no reason todisbelieve. . . . . . . . . . . . . . . . . . . . (The finding of) the Collector must be and is hereby set aside. " ( 168 ) THE Tribunal then referred to the decisions of thecentral Government in revision in case of M/s. Scientific Mechanic Works and M/s. Zenit Engineering Works where it was heldthat spindle inspires could not be classified under item No. 49. A decision of the Central Government in revision in M/s. Shreekrishna Cast and Iron Brass Works where it was held that toprollers do not fall under Item 49, is also referred. The Tribunalhas referred to Central Government's order in M/s. Jain Bros. ,new Delhi, where also a similar view was taken. The Tribunalthen held :"the above would show that jockey pulleys earlier werenot classified under Item No. 49 of the Centralexcise Tariff but were classified under Item No. 68of the Central Excise Tariff, both on the strengthof the earlier Trade notice as also subsequent decisions of the Government in similar cases. ,new Delhi, where also a similar view was taken. The Tribunalthen held :"the above would show that jockey pulleys earlier werenot classified under Item No. 49 of the Centralexcise Tariff but were classified under Item No. 68of the Central Excise Tariff, both on the strengthof the earlier Trade notice as also subsequent decisions of the Government in similar cases. In J. K. Synthetics Ltd. and Another v. Union of India andothers, 1981, E. L. T. p. 328 (Delhi) it has beenheld as under :"if the matter is looked at from this larger perspectivewe think it will be clear that there can be onlyone answer to this question viz. that the department should not be permitted to take differentstands unless there is any good or cogent reasonfor the change in view. For example, if the factsare different or if further and fresh facts arebrought on record or if the process of manufacture has changed or if the relevant entries in thetariff have undergone a modification or if subsequent to the earlier decision there has been thepronouncement of a High Court or the Supremecourt which necessitated reconsideration of theissue, it can hardly be doubted that the Government ran take a different view and have thematter agitated right upto Supreme Court, ifnecessary. But when there is no change at alland when the position is exactly the same, legallyand factualty, as it was on the earlier occasionthen we think that the department should be restrained from capriciously changing its stand andinflicting unnecessary proceedings and hardshipupon assesses. Any authority can depart from a findingarrived at in an earlier year only for cogentreasons. There should be either fresh facts or achange of law or at least a suggestion that whilearriving at the conclusion of the earlier year certain material facts or provisions had not beenconsidered and that if they had been considered adifferent view might have been taken. But forno reason at all there can be no departure fromthe view taken in an earlier year. "it is not suggested that there were either fresh facts,change in law, change in process of manufacture orin the entries of the tariff. Applying the ration ofabove decision, it would appear that the Collectorwas not justified inchanging the stand and holdingthat jockey pulleys are classifiable under Item No. 49 of the Central Excise Tariff". (Emphasis supplied ). "it is not suggested that there were either fresh facts,change in law, change in process of manufacture orin the entries of the tariff. Applying the ration ofabove decision, it would appear that the Collectorwas not justified inchanging the stand and holdingthat jockey pulleys are classifiable under Item No. 49 of the Central Excise Tariff". (Emphasis supplied ). ( 169 ) THE decision of the Appellate Fribunal in Mukund Engineering Works, is a complete answer not only to the questionof alternative remedy but the entire case of the respondent before us, for the following reasons :1. The Collector's finding on the trade practice waswithout any evidence and evidence of the petitioner was ignored. 2. I. S. I. specifications do not determine classifications. They cannot be relied upon when they were notdisclosed in the show cause notice. 3. The Collector is bound by the decision of thecentral Government in revision. Indeed, the Tribunal itself felt bound by the said decisions of thecentral Government in revision. 4. Subsequent trade notices and tariff advises wereheld to be irrelevant for classification of jockey pulleysas falling under Item No. 49. 5. The Division Bench decision of this Court in J. K. Synthetics on the question of estoppel res judicataand binding procedents in tax matters was not onlyapproved but relied upon by the Tribunal. 6. Incidently, it may be noted that it is the same Collector of Customs and Central Excise Ahmedabad-Shri B. V. Kumar-who has refused to follow thedecision of the Central Government in revision, hasnot produced any evidence of trade practice and relying purely on ISI. specifications (without disclosing them to the petitioner) imposed penalties inmukund Engineering as well as. our present case. 7. Having taken the decision on the above grounds inmukund Engineering by the Special Bench of thetribunal, it would be impossible for the Tribunalto take a different decision in the present case ifthe Tribunal follows the principles of certainty, andunified judicial approach enunciated by it in Atmasteels Pvt. Ltd. (ibid ). our present case. 7. Having taken the decision on the above grounds inmukund Engineering by the Special Bench of thetribunal, it would be impossible for the Tribunalto take a different decision in the present case ifthe Tribunal follows the principles of certainty, andunified judicial approach enunciated by it in Atmasteels Pvt. Ltd. (ibid ). ( 170 ) THE decision of the Tribunal in Mukund Engineeringis in line with the decision of this Court in Bharat Karpets Ltd. v. Union of India, 1978 E. L. T. 111 (119) (73) F. S. Gill, J. (who is now the President of the New Appellate Tribunal) asa Judge of this Court held :"i have already observed that after the passing of theorder of Government of India on 14-4-1972 (Section 36 of the Central Excise and Salt Act 1944)no change in the process of manufacturing the goodsor even in the law has taken place. The Assistantcollector, a subordinate authority, is therefore boundby the decision of the Government of India. " ( 171 ) THE above decisions would amply demonstrate that itis futile to direct the petitioners to prefer an appeal to theappellate tribunal. But it is also furtile to remit the matter tothe Tribunal on the question of penalty as is done by two ofmy brethren. On identical facts the special bench of the Tribunal in Structural and Machindaries (Bokaro) Pvt. Ltd. , v. Collector of Central Excise, Patna, 1984 (17) E. L. T. 127 (74),has held that penalty could not be imposed on the appellants inthat case. The question before the Tribunal was whether theappellants, who carried out fabrication work in the year1979-80 without obtaining a Central Excise Licence were entitled to the benefit of Notification No. 89/79-CE, dated 1-3-1979. The Collector held that the appellants were not so entitled tothe benefit of the said notification and imposed a fine ofrs. 5,000. Setting aside the order of penalty the Tribunal held:"as to the question of penalty, it does nor appear thatthere was any attempt on the part of the appellantsto evade payment of duty. The appellants hadinformed the excise authorities of their activity andthemselyes voluntarily furnished necessary figureswhich constitute the basis of the present action. Besides, there was a decision of the Board in the caseof Hindustan Construction Co. Ltd. , from whichthe appellants could reasonably believe that fabrication of structural did not constitute manufacture ofgoods. The appellants hadinformed the excise authorities of their activity andthemselyes voluntarily furnished necessary figureswhich constitute the basis of the present action. Besides, there was a decision of the Board in the caseof Hindustan Construction Co. Ltd. , from whichthe appellants could reasonably believe that fabrication of structural did not constitute manufacture ofgoods. Considering all this, we do not think thatimposition of penalty on the facts and circumstancesof the case is justified. "vi. CONCLUSIONS : ( 172 ) THE impugned show cause notice and confiscation orderif a repeat performance by Collector of Ahmedabad Shri B. V. Kumar. In Mukund Iron Works the same Collector had ignoredthe earlier decisions of the Central Government inrevision and had used I. S. I. specifications against the petitioner in that case without disclosing it in the show cause notice. The new Appellate Tribunal has held that the action ofthe Collector was illegal and his order was set aside. Similarillegalities are committed in the preseat case and many more. The Collector refused to see the order of the Central Government and the order of the Special Bench of the Court. He didnot hear the petitioner on I. S. I. specifications. "see no evil,hear no evil and speak no evil. " The rule of administrative lawis if you do not see the binding precedents and do not hear aparty, you shall not speak adversely against it I have alreadydemonstrated that the Collector's order is perverse and arbitrary. The order also violates fundamental rights. The Collector has abdicated his judicial functions. As a Constitutionalcourt exercising the writ jurisdiction we cannot overlook theillegalities which even the quasi-judicial tribunal has found to befatal. We have a further duty to strike down the order for theother serious grounds mentioned above. I further hold that the conditions imposed on the licences at the time of the revalidation were bad in law and the licences could be availed ofas if no such illegal conditions existed. There was no policyto canalise industrial coconut oil through S. T. C in the policyyear 1980-81. The trade meaning of coconut oil particularlyfor the purposes of canalisation (in the light of the history ofcanalisation) is edible coconut oil. The petitioner had importedthe oil in question as raw materials which was neither canalisednor prohibited. Therefore, there was no violation of Sectionof the Imports and Exports (Control) Order, 1947 read withsection II of the Customs Act, 1962. The trade meaning of coconut oil particularlyfor the purposes of canalisation (in the light of the history ofcanalisation) is edible coconut oil. The petitioner had importedthe oil in question as raw materials which was neither canalisednor prohibited. Therefore, there was no violation of Sectionof the Imports and Exports (Control) Order, 1947 read withsection II of the Customs Act, 1962. The confiscation orderpassed under section lll (d) of the Customs Act was illegal. The show cause notice and confiscation order are quashed. Thepetitioner is entitled to the refund of the amount of fine deposited by it in lieu of confiscation, in both the petitions. The writpettiioners are allowed. The rule is made absolute. The petitioner shall be entitled to Rs. 3,000 as costs for one set in boththe petitions. Per Khanna, J.-1 am in respectful agreement with the detailed and considered judgement of brother Sachar, J. ( 174 ) THE import policy of any country, particularly a developing country, has necessarily to be tuned to its general economic policy founded upon its constitutional goals, the requirements of its internal and international trade, its agricultural andindustrial development plans, its monetary and financial strategies and last but not the least the international political and diplomatic overtones depending on "friendship, neutrality or hostility with other countries". There must also be considerable number of other factors which go into the making of an importpolicy. Expertise in public and political, national and international economy is necessary before one may engage in themaking or in the- criticism of an import policy. Courts do notpossess the expertise and are consequently incompetent to passjudgment on the appropriateness or the adequacy of a particular import policy. These observations of Chinnappa Reddy,j. in the decision of Liberty Oil Mills and others v. Union ofindia and others [ (1984) 3 S. C. 465] sufficiently bring outthat the formulation of an import and export policy is entirelywithin the domain of the State, and the courts cannot ventureto question its propriety or give any directions. ( 175 ) THE approach that in a taxing statute, in case of anyambiguity or the matter being capable of two opinions, the benefit should essentially go to the subject does not hold good withregard to export and import matters or the levy of the customduty. ( 175 ) THE approach that in a taxing statute, in case of anyambiguity or the matter being capable of two opinions, the benefit should essentially go to the subject does not hold good withregard to export and import matters or the levy of the customduty. It is primarily for the import control authorities to determine the head of entry in tariff schedule under which anyparticular commodity fell: but if in doing so, these. authoritiesadopted a construction which no reasonable person could adopti. e. if the construction is perverse, then it is a case in whichthe Court is competent to interfere. In other words, if therewere two constructions which an entry could reasonably bear. and one of them was in favour of Revenue was adonted. thecourt has no jurisdiction to interfere merely because the otherinterpretation favourable to the subject appeals to the Court asthe better one to adopt. See in this regard the decision of thesupreme Court in Collector of Customs, Madras v. K. Gangasetty (AIR 1963 S. C. 1319 ). This view was again approvedin the case of V. V. Iyer of Bombay v. Jasjit Singh (AIR 1973s. C. 194) and it was observed that where two alternative interpretations are possible of the scope and applicability of Item74 (vi) of Part V of schedule I to Imports (Control) Order,1955 made under Section 3 (1) of the Imports and exports (Control) Act, 1947, and Customs authorities adopt a reasonable view relating thereto which is favourable to Revenue, suchfinding of the authorities cannot be interfered with by Highcourt under Article 226 even though another view contrary toone adopted is in favour of the subject. ( 176 ) IT is now also well settled that the Government of thecountry is well competent to make import policy of total prohibition or render the same under heavy customs barrier or entrust the same to selected agencies or channels in the interest ofthe public. Consequently the decision that import shall be canalised is per se a reasonable restriction, and is difficult to challenge courts (Glass Chatons Importers and Users Associationand others v. Union of India and others, AIR 1961 Supremecourt 1514) (75 ). ( 177 ) THIS is next no gain saying that in the interpretation ofitems in taxing statutes what is understood in common parlanceis the meaning which has to be attached to them. ( 177 ) THIS is next no gain saying that in the interpretation ofitems in taxing statutes what is understood in common parlanceis the meaning which has to be attached to them. They haveto be taken in the sense which people conversant with the subject matter with which the statute is dealing will take them tobe. However, the same item may be understood in differentcontexts depending upon whether he is a manufacturer, producer. importer or consumer. Even in different, sets of businesscommunity, the same may not have universal implication. Thusthe term "spirit" may invite different response amongst dealersof medicines from those connected with paints, furniture etc. tne class may treat the same as having reference to denaturedspirit and the other methylated spirit. A buyer going to a cyclemarket and seeking "pump" would naturally gat an, air pumpwhile another seeking the same item in an electrical or sanitarymarket may have response of electrical or water pump. Cashmilon which has no element of wool in it would generally befound in shops selling wool and the house-wife would only tarmit as wool. Similarly it does not stand to reason that the item''coconut oil" must have relevance to that which is edible andnot the non-edible or industrial variety. It is in the Stateof Kerala and some places adjoining the same that coconut oilis primarily used as a cooking medium. In the rest of thecountry it is understood and used for non-edible purposes likehair oil, constituent of soap industry and used in various otherproducts. In fact it is overwhelmingly used for purposes otherthan as cooking medium, as such it would be unwarranted tolimit its meaning to edible coconut oil only. There are a number of grades and types of coconut oil. There is, therefore. no justification to hold that a particular type or grade only canbe treated as coconut oil and that the others are not. In factthe edible stage reaches after carrying out refinement of this oil. Thus a specie docs not loose its character and origin from thegenes. ( 178 ) MY learned brother Sachar, J. has rightly observedthat it is difficult to appreciate by what logic the word coconutoil mentioned in the import policy can be restricted to merelyedible variety of coconut oil. Rather it can as well he why notthe non-edible and industrial variety which alone after somepurification is rendered as edible. ( 179 ) THE licences on the. Rather it can as well he why notthe non-edible and industrial variety which alone after somepurification is rendered as edible. ( 179 ) THE licences on the. basis of which the petitioner imported coconut oil in September, 1982 themselves made it clearthat they were subject to the prohibition or regulation effectingthe importation of the goods which might be in force at thetime of their arrival. The petitioner having chosen to act underothers. these licences could not be heard to plead that this vital condition of import was not operative. In the year 1981-82 and 1982-83 no matter of doubt had been left when it was clarified thatitem coconut oil included both edible and industrial. This incorporation was plainly clarificatory in nature as it brought outwhat was always meant or understood to be. Thus the petitionerin any case was left with no mis-givings whatsoever that inseptember 1982 when the import was effected it was prohibitedin private hands and had to be canalised through the Slattrading Corporation only. Even independent of this specificcondition incorporated in those licences, it is now well settledthat any restriction in the Import Trade Control Policy Bookor Red Book would govern the licence as one of the conditionsupon which import could be made under the. licences. See inthis regard the decision of the Supreme Court in Hazarimal K. Shah, v. Collector of Customs. Madras, [1971 (3) Supremecourt Cases 840]. ( 180 ) THE scheme of revalidation of licences enjoined revalidation for the first six months. On the same terms and conditions as mentioned in the licence. However in case suchrevalidation has to be further obtained for a period after thosesix months the authorities are competent to impose such conditions as they may deem proper. The import thereafter canhe elected subject to such conditions. It is for the licenceholder to not avail of the licence if the conditions are not acceptable to him. If however he does so, he is bound by them andmust be held to be estopped from pleading later that he. wasnot govered by those conditions. In this record there is nogain saying that import licences are issued every year keepingin view the country's requirements of that year. Normallysuch licences should be availed of during the period for whichthey are issued. If they are allowed to lapse, the discretionrests. with the authorities to revalidate them or not. wasnot govered by those conditions. In this record there is nogain saying that import licences are issued every year keepingin view the country's requirements of that year. Normallysuch licences should be availed of during the period for whichthey are issued. If they are allowed to lapse, the discretionrests. with the authorities to revalidate them or not. If theyin this process choose to impose certain conditions, as they mayconsider appropriate considering the requirement of ensuingyears, no exception can be taken. The licence holder who hasalready made a default in importing the goods in the relevantyear tor which the licence was issued can avail the licence subject to such conditions only. Now in the present case. the revalidations plainly enjoined that the imports would be subjectto the policy in force in the year 1982-83 when the in? port waseffected. By then the item coconut oil had been beyond anyiota of controversy made clear as to include both edible andindustrial coconut oil. . ( 181 ). The petitioner has not disputed that against. the impugned Older of the Collector an appeal could be filed before thetribunal. This was not done and recourse to instead taken byway of the present writ petition. Normally we should havelittle hesitation in declining to exercise writ jurisdiction andrequired the petitioner to avail of the alternative remedy before the Tribunal. The High Court should be slow in eucouragnig parties to circumvent the special provisions made providingfor appeals and revisions in respect of orders which they seekto challenge by writ petitions under Article 226. Moreover,the jurisdiction of the High Court in the exercise or writ petitions is limited. It cannot act as an appellate authority or embark upon fresh appraisement of facts or going into elaborateexamination of evidence. See in this regard the decisions reported as S. Jagadeesan v. Ayya Nadar Janaki Ammal Collegeand another, (AIR 1984 S. C. 1512) (76); Thansingh Nathmaland others v. The Superintendent of Taxes. Dhubti and others (AIR 1964 S. C. 1419) (77) and The British India Stem Navigation Co. Ltd. v. Jasjit Singh, Addl, Collector of Customscalcutta and others (AIR 1964 S. C. 1451) (78 ). ( 182 ) IT, however, appears that this recourse to moving thehigh Court directly is not altogether an innocent and straightforward conduct. My learned brother Sachar. J. has rightlytermed it as a sort of trap. Ltd. v. Jasjit Singh, Addl, Collector of Customscalcutta and others (AIR 1964 S. C. 1451) (78 ). ( 182 ) IT, however, appears that this recourse to moving thehigh Court directly is not altogether an innocent and straightforward conduct. My learned brother Sachar. J. has rightlytermed it as a sort of trap. This is apparent from the mannerin which the decision of the Central Government dated 31-3-82is sought to be treated as the final word for the customs department, and this court is sought to require the customs authorities to abide by the same whatever view they or this court mayhold about the meaning attacnable to the item "coconut oil"and the implications of the terms and conditions of the licences. It is not disputed that if an appeal had be in filed, thetribunal could have come to an independent decision and evendiffered with the said decision of the Centra! Government. That, however, the Tribunal has been shut out from doing soby being by-passed in the form of this writ, and when the department and this court want to go into the propriety of thatdecision, we are told to keep our hands off. I am in this regardunable to agree with the petitioner that the decision of thecentral Government is a binding precedent on the customsdepartment. It is the decisions of the Supreme Court and ofthe High Courts which can operate as precedents. Stare Decisisapplies only to the decision of the highest courts. The Centralgovernment was not a court. It is not even certain if the Specialsecretary who gave that decision on behalf of the Centralgovernment was a law graduate. Subordinate courts, quasijudicial bodies or tribunals have not. enough judicial maturity,expetise, acumen and experience which can make their decisions as precedents having binding force. They can only bepersuasive. The decisions on which the petitioner has soughtto rely have been distinguished by learned Sachar J. and I neednot refer to them here again. However, there is one aspect whichneeds to be mentioned. Section 131 (3) of the Customs Act asit existed before the subsequent amendment am' under whichmr. M. G. Abrol, Special Secretary of Ministry of Finance, Department of Revenue, Government of India, purported to acton behalf of the Central Government could be invoked by thecentral Government for the limited purpose of annuling ormodifying any order passed under Section 120 or Section 130of the Act. M. G. Abrol, Special Secretary of Ministry of Finance, Department of Revenue, Government of India, purported to acton behalf of the Central Government could be invoked by thecentral Government for the limited purpose of annuling ormodifying any order passed under Section 120 or Section 130of the Act. This was when it was exercising powers of its ownmotion. None of this was done in that case. No annualmentor modification of the order of Central Board was being madeby Mr. M. G. Abrol acting for the Central Government. Assuch once he had found that order did not require such fatehe should have kept his hands off the order and lift is as it wasand discharged the notice. Instead what he purported to dowas to given a stamp of authenticity to the order passed by thecentral Board. This was none of his function under Setcion131 (3 ). The order, therefore, went beyond the powers available under Section 131 (3 ). What made Mr. Abro to make thisorder in his over-zealousness to provide authenticity to thecentral Board is difficult to say. The revenue has no doubtpointed out that it was his last working day and he was retiringon 31/03/1981. I should have been extremely reluctantto make these passing observations but for the magic want treatment that the petitioner has sought to attach to this order. Ithas. therefore, been felt necessary to bring out the inherent lackof competency of the Central Governmem to make such orderunder Section 131 (3 ). It would be proper to reproduce thesame verbatim as under :-- (3) The Central Government may of St.- own motionannual or modify any order passed under Section128 or Section 130. ( 183 ) WHEN such had been the strategical procedure adoptedby the petitioner 1 should not have been inclined to require thetribunal to go into the propriety of the quantum of redamptionamount. This is veritably putting the petitioner in advantageousposition as if he has actually filed an appeal before the Tribunali would have felt more inclined to leave the petitioner to himselffile the appeal and agitate the matter belore the Tribunal andseek condonation of delay. The discretion in that regard wouldrest with the Tribunal and the same should not be fettered by usby requiring the Tribunal to treat the petitioner as if he hasalready filed an appeal before him. ( 184 ) THE redemption amounts levied in the two cases beforeus totalled Rs. 5 crores. The discretion in that regard wouldrest with the Tribunal and the same should not be fettered by usby requiring the Tribunal to treat the petitioner as if he hasalready filed an appeal before him. ( 184 ) THE redemption amounts levied in the two cases beforeus totalled Rs. 5 crores. These heavy amounts were still paidby the petitioner and the coconut oil got released. It has subsequently been marketed. The customs authorities have, ofcourse, referred to the prevailing market rates then and pointedout that the petitioner has still made substantial profits. Thepetitioner has, however, disputed that the market rate was asmentioned by the respondent and has pleaded that the samewas much less. It has also been pointed out that the petiticnerhad to pay considerable interest to the banks from which loanswere taken for payment of that large amount. Be that as itmay. brother Sachar J. has directed the consideration of thepropriety of the quantum of redemption amount to the Tribunal. The circumstances and considerations which prevailed in doingso have been mentioned in my brother's judgment. It has beentaken note that the present cases have taken considerable timeto decide and passed through various stages. Requiring thepetitioner to move appeal before the Tribunal against the orderof the Collector has been considered to be cumbersome and mayfurther delay the matters. Moreover, this court in the exerciseof the writ jurisdiction would not like to probe into and weighthe facts and circumstances relevant for determination of proper quantum of redemption amount. As such in the ultimateanalysis I am inclined to concur with brother sachar. J. whenhe has referred the rnatter to the Tribunal ( 185 ) THE controversy involved in the Dresent case has beensimpliciter. viz. whether the term "coconut oil in its amplitudecovers all varieties of oil which go with such name. or that itshould be restricted to one variety, namely, edible A person inthe street, a house-wife, or those in business and industry, wouldanswer its implication as to include all varieties. Even the petitioner, while describing non-edible or industrial oil did not leavethe expression there, but added and affixed the basic character"coconut oil" with the same. Mere mention of non-edible orindustrial without the use of coconut oil would leave that entirelyvague and indefinite as to which oil it has reference. In fact,when the Central Government purported to act under Section131. Even the petitioner, while describing non-edible or industrial oil did not leavethe expression there, but added and affixed the basic character"coconut oil" with the same. Mere mention of non-edible orindustrial without the use of coconut oil would leave that entirelyvague and indefinite as to which oil it has reference. In fact,when the Central Government purported to act under Section131. it professed to resolve conflicting views taken by differentcollectors, whether the expression "coconut oil" included boththe varieties. It is, therefore, futile to say that this term hasimplication of edible variety only. ( 186 ) IT has been taken note by brother Wad, J. that thepropriety of importing edible coconut oil has been felt fromtime to time because of shortages in the internal market andto sustain the price level in the domestic consumer market. Nonedible coconut oil was not imported as production in the countryadequately met the requirements. In the circumstances, if thestate Trading Corporation was importing edible variety alone,that was as a fact only, and the letter obtained by the petitionerfrom that Corporation simply narrated what was in vogue orhappening. Simply because the requirements of the country at agiven time did not compel the government to import industrialvariety, the same could not be taken to fall outside the canaliseditem of coconut oil. It still remained as such. The leter fromthe State Trading Corporation, therefore, could only clarify whatwas actually being canalised as a fact, and not what ought to beessentially canalised. The scheme of the Statute has in this regard conferred the exclusive power with the Chief Controller ofimports and Exports to give any authentic opinion in case of doubton interpretation of any matters relating to import. If he therefore. gave such opinion, the same was in exercise of power availatle with him. and not that thereby he usurped in himself thequasi-iudicial functions of the Collector or the Board. Of course. those authorities may still be inclined to ignore his interpretationif they find in compelling circumstances to not agree with thesame. However, mere faking into account his views does notrender the order of the Collector or the Board as not theirs, and. therefore violative of well recognised judicial norms of independence. Of course. those authorities may still be inclined to ignore his interpretationif they find in compelling circumstances to not agree with thesame. However, mere faking into account his views does notrender the order of the Collector or the Board as not theirs, and. therefore violative of well recognised judicial norms of independence. ( 187 ) I am unable to accept that this writ petition is maintainable without exhausting the other remedies of appeals available under the Statute, in case it is sought to be urged that thecentral Government's order under Section 131 is binding for alltimes, and the Tribunal too could not have taken an independent contrary view. Much water has flown since the old concept adhered to by Judicial Committee of the Privy Council thata subsequent Bench could not differ with the legal view takenin an earlier decision. That infallibility of judicial mind has longbeen given a go-bye, and with changing concepts and values,highest courts have little hesitancy in modifying the approachwhere it is noticed that an error has crept in. The courts inindia have taken divergent views on interpretation of laws atdifferent times, and it is too late now to propound a theory ofmoratorium on interpretation of legal propositions. Even theconstitutional interpretations have occasionally fallen assunder. and most noteable has been the case of L. C. Golak nath andothers v. State of Punjab and another, AIR 1967 Supreme Court1643 (79) in the contect of Kesavananda Bharti Sripadagalavaru, (1973) Supp. S. C. R. 1 (80 ). The propriety of service of notice under Section 106 of the Transfer of Property Act in rent controlcases has received different interpretations from the Supremecourt. Similar were two cases under the Prevention of Foodadulteration cases of Municipal Corpora. tion of Delhi vs. Tekchand Bhatia 1979 (11) FAC 218 (81) and Municipal Corporationof Delhi, V. Kacheroo Mal, 1975 (11) FAC 223 (82 ). Correctionof judicial error does not necessarily amount to creating confusion in the minds 'of the public as to the position of law. Itrather sets the things right and constitute? departure from erroneous persistency. ( 188 ) IT is also not unoften for a retiring judge to deliver judgments shortly before or on the date of retirement in matterswhich have been heard quite some time earlier. Itrather sets the things right and constitute? departure from erroneous persistency. ( 188 ) IT is also not unoften for a retiring judge to deliver judgments shortly before or on the date of retirement in matterswhich have been heard quite some time earlier. However, theposition is different when the case itself is taken up by an officeron the last date involving stakes of high magnitude, and adjudicating upon them before laying the charge of the office. It wouldbe all the more so in view of the interpretation of the powersavailable as referred to by me above under Section 131 (3) ofthe Customs Act. ( 189 ) A number of decisions have been referred in which thecourts have observed that the decisions of the highest Tribunal are binding on the subordinate authorities. Those were mostlycases in which remand orders had been made. There can be nopossible dispute that decision of the highest Tribunal in a particular case is binding on all such authorities in that case. Therecan also be cases where the very nature of the decision wouldbind for future assessments as well, such as recognition of partition or bringing the property into the common hotch-potch ofthe Hindu undivided family. Such acts, take place once, and iftheir existence is recognised, naturally they are not open to purview differently in other years. However, principles of res judicata or binding character as precedent in another case is notoperative in taxing statutes, much less of quasi-judicial bodies. They, of course, deserve utmost respect and have persuasivevalue. ( 190 ) WHEN a case is referred to larger Bench by a Singlejudge, the entire file, papers and written submissions made andthe file of the Single Judge go before the larger Bench. Thosedocuments and submissions need not be, therefore, re-submitted. ( 191 ) BROTHER Wad, J. has aptly observed that the new Appellate Tribunal has been established not only to ensure objectivity and impartiality but to demonstrate through its actionsthat it was doing justice and. fair-play. Why, therefore, the petitioner has chosen to by-pass the Tribunal and come straightaway in. this writ, is not understandable. There should be no reason to suppose that the Tribunal would not have given judiciousindependent decision. fair-play. Why, therefore, the petitioner has chosen to by-pass the Tribunal and come straightaway in. this writ, is not understandable. There should be no reason to suppose that the Tribunal would not have given judiciousindependent decision. ( 192 ) BEFORE concluding, I may also refer to the cartoonabout which reference has been made by brother Wad, J. Itneed hardly in this regard, be impressed that often a cartoon posrsa matter of momentary interest, or an aspect from certain pointof view. It would be far fetched to interpret it as a sobre analysisof the problem in all its facets. There should be no dearth ofcartoons depicting powerful vested interests exerting their influences and pulling strings with the government or the authoritiesthat be towards their own way of thinking or interests. In a bigmoney owned press, not unoften view-points favourable to particular sections are high-lighted. ( 193 ) AS a result, I am unable to persuade myself to subscribeto the view taken by my learned brother Wad, J. I concur withthe judgment of brother Sachar, J. PER MAJORITYIn view of the. decision by the majority, the result will bethat the contentions of the petitioner fail excepting that ihematter will be remitted to the Appellate Tribunal only on thelimited question of redemption fine. All other pleas raised by thepetitioner fail. The writ petition is disposed of accordingly, butwith no order as to costs.