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Anand Rubber and Cycles Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1985)LC286Tri(Mum.)bai
AppellantAnand Rubber and Cycles
RespondentCollector of Customs
Excerpt:
.....import licence no. p/s/1730931, dated 2-3-1972 for clearance of the goods under the description "mould release agent" with the serial no. 22-31/v of the l.t.c. schedule shown in the licence. the goods, on test, were found by the customs authorities to be silicone emulsion which, as a silicone products, was held by the authorities to fall under serial no.122/v (others) in the l.t.c. policy. reliance was placed on the index to the policy book which showed silicone products all along under serial no. 122/v (others) since 1968-1969. moreover, silicone emulsion whose import was banned for import in the policy for 1972-1973 showed the goods specifically under serial no. 122/v (others). therefore, said the customs, the import of the subject silicone emulsion required a licence under serial.....
Judgment:
1. The facts of the case in Appeal No. 14/75, briefly stated, are that the appellants imported "SILICONE EMULSION 35%" and presented Import Licence No. P/S/1730931, dated 2-3-1972 for clearance of the goods under the description "Mould Release Agent" with the Serial No. 22-31/V of the L.T.C. Schedule shown in the licence. The goods, on test, were found by the Customs authorities to be Silicone Emulsion which, as a Silicone products, was held by the authorities to fall under Serial No.122/V (others) in the L.T.C. Policy. Reliance was placed on the index to the policy book which showed silicone products all along under Serial No. 122/V (others) since 1968-1969. Moreover, silicone emulsion whose import was banned for import in the policy for 1972-1973 showed the goods specifically under Serial No. 122/V (others). Therefore, said the customs, the import of the subject silicone emulsion required a licence under Serial No. 122/V (others) and that the licence produced with the general description "Mould Release Agent" Serial No. 22-31/V was not valid to cover the import. On this basis, adjudication proceedings were held by the Deputy Collector of Customs, Bombay and vide his order dated 10-9-1973, he confiscated the goods under Section l11(d)of the Customs Act, 1962. However, he gave an option to the appellants under Section 125 of the Customs Act to clear the goods on payment of a fine of Rs. 24,000/-. The matter was pursued in appeal by the appellants but without success.

3. The only issue for determination is whether the products in question, viz. "Silicone Emulsion 35%" and "Rhodorsil Mould Release Agent" were covered by the licences under Serial No. 22-31/V or whether they required for their import licences issued under Serial No. 122/V (others). In the context, it is necessary to note that the lower authorities have proceeded on the basis that the branded product "Rhodorsil" is "silicone emulsion". From the Appellate Collector's order dated 21-9-1974 it is seen that during the hearing before him, the appellants had produced a catalogue in respect of "Rhodorsil" which was shown therein to consist of 35% Silicone fluid organic emulsion used as a release agent for rubber and plastic material. The undisputed position which thus emerges is that the subject goods are Silicone Emulsion 35% used as mould release agent.

4. During the hearing before us, Shri Surinder Kumar on behalf of the appellants, reiterated the submissions made before the lower authorities and reiterated in the memo of appeals. In the main, the submission was that the subject goods were mould release agents; that the licensing authority itself considered Silicone Emulsion 35%-mould release agent as falling under Serial No. 22-31/V as evidented by two licences Nos. P/S/1726105, dated 21-9-1971 (April-March 1972) in the name of Revindra Industries, Jullunder and P/S/1727605, dated 5-11-1971 (April-March 1968) in the name of Prince Rubber Industries both showing the description of the goods as "mould release agents (Silicone Emulsion)" and others items-Serial Nos. 116/IV, 106/IV and 22-31-/V (these licences were produced for perusal), that Serial No. 22-31/V ("other chemicals") was more specific than the residuary Serial No.122/V (others) which covered all goods not elsewhere specified in the Schedule and that the index to the policy book had no statutory force.

5. Shri J.M. Jain, Senior Departmental Representative on behalf of the respondents, opposed the appeals and submitted that the two licences produced for clearing the subject goods were issued on 2-3-1972, i.e.

during the April-March, 1972 policy period, the shipment of the goods took place in November, 1972 i.e. long alter the policy for April-March, 1973 had come into force. Silicone emulsion did not figure in Serial No. 22-31/V nor in Appendix 28 covering import of chemicals.

The index to the policy showed silicone products as falling under Serial No. 122/V. In the April-March, 1973 policy, Silicone emulsion was an item banned for import. He also referred to Government of India's Order-in-Revision No. 4005 of 1974, dated 24-8-1974 holding Silicone emulsion as falling under Serial No. 122/V.6. We have carefully considered the submissions of both sides. There is no dispute about the fact that the goods under consideration are Silicone Emulsion 35%-mould release agents. Going by the product description in the licences viz. "mould release agents", there should, therefore, be ordinarily no difficulty in accepting the licences for clearance of the goods. The department's stand is that Silicone Emulsion, though a mould release agent, falls under Serial No. 122/V (others). This is based on two arguments-firstly, silicone products are shown under Serial No. 122/V in the index to the policy. Secondly, the above position is confirmed in the subsequent policy for April-March, 1973, wherin Silicone emulsion was banned, and shown specifically under Serial No. 122/V (others). We cannot see any force in these arguments.

The index is only an aid to quick reference to the policy book. It is not invested with and does not have any legal force. Moreover, Silicone Emulsion, in terms, was not shown under Serial No. 122/V during the relevant period. We also consider that as between "Mould Release Agents" and "All other goods not elsewhere specified", the former is decidedly the more specific entry to cover the present goods which are admittedly mould release agents. The fact that the licensing authority itself considered silicone emul-[fsion-mould release agent as falling under Serial No. 22-31/V (though the evidence for this is not the licence of the appellant but of two other parties- but this should make no difference) is a factor in the appellants' favour. The Government of India's Order-in-Revision cited by the Departmental Representative relies heavily on the index to the policy book which, as we have been, has no legal force. It is also relevant to note that the licence was governed by the April, 1971-March, 1972 Policy during which period the goods were not banned for import.

7. Having regard to the foregoing discussion, we hold that the imports were validly effected by the appellants against the licences produced.

In the result, the appeals are allowed with consequential relief to the appellants which shall be granted to them within three months from the date of communication of this order.


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