Ajit Kumar Sengupta, J.
1. In this application under Article 226 of the Constitution the petitioner has challenged the refusal of the respondents to release the goods imported for home consumption under a valid licence without assigning any reason therefor. The facts of the case as appearing from the writ petition are stated hereinafter. The petitioner carries on business of importing and dealing in various types of chemicals, drugs etc. On December 7, 1982 the petitioner imported 1,500 kgs. of AMOXYCILLIN TRIHYDRATE (hereinafter referred to as the said goods) from Spain by air flight. The said import was made under Import Licence No. 2826352 dt. 14-3-80. It has been alleged that the said goods have been imported by the petitioner for Flemming (India) who are actual users thereof. After arrival of the said goods the Bill of Entry for home consumption in the prescribed form was submitted before the Assistant Collector of Customs, Air Cargo Complex (Import), the respondent No. 3. Pending processing of the documents by the Customs Authority, the said goods were removed to bonded warehouse on January 11, 1983. The Customs Authority released the said goods on 22nd February, 1983. As the consignee of the said goods found it difficult to arrange for nearly Rs. 12,00,000/-at a time, being the Customs Duty on the said goods, at the request of the petitioner the said Bill of Entry for home consumption was converted into Bill of Entry for warehousing. The petitioner was permitted to make part payment of the duty and to take part delivery of the said goods. The said goods being drugs, the customs authorities drew samples from the said goods for test. High Seas Sale Declaration showing the sale of the said goods to M/s. Flemming (India) was produced before the Customs Authorities on 5th May, 1983. Pending testing of the said goods the petitioner gave a letter of guarantee not to dispose of the said goods without the consent of the Collector of Customs, the respondent No. 1. The samples drawn from the said goods were found to be of standard quality. By a letter dt. 27th November, 1983 addressed to the Assistant Collector of Customs, Air Cargo Complex (Import), the respondent No. 3, Assistant Drugs Controller (India) stated that the letter of guarantee pertaining to the said import be cancelled and the said goods be released to the petitioner. Between 12th May, 1983 and 18th December, 1983 the petitioner took delivery of 900 kgs. of the said goods after making payment of proportionate customs duty thereon amounting to more than Rs. 7,00,000/-.
2. On 18th April, 1984 and 25th April, 1984 the petitioner filed two Bills of entry for Ex-Bond Clearance for home consumption with the respondent No. 3 in respect of the balance quantity (600 kgs.) of the said goods lying in the bonded warehouse. The Customs Authorities however did not return the said Bill of Entry to the petitioner. By a letter dt. 10th May, 1984 addressed to the Deputy Collector of Customs Incharge of Air Cargo Complex (Import), the respondent No. 2, the petitioner requested the said respondent for taking appropriate action at an early date inasmuch as the said goods being drugs were urgently required by the consignee who are facing acute shortage of the said goods. A reminder was sent on 16th May, 1984 intimating the respondent No. 2 that the materials in question were essential basic drugs and their expiry date were nearing. After the expiry of the said date the use of the said goods are not permissible. The respondents neither released the said goods nor intimated the reasons for withholding the said goods.
3. This application has been moved upon notice. Mr. S. N. Banerjee, the learned advocate appearing for the respondents, has submitted that the goods in question are canalised items and such items can only be imported by the State Trading Corporation of India under Open General Licence. He has, therefore, submitted that the Customs Authorities are justified in not releasing the said goods. It has been further submitted that a part of the goods had already been released on a misconception of law and facts and the Department would prefer appeal therefrom. The respondents have not used any affidavit and produced the records before me. Having regard to the fact that the goods in question are drugs and their expiry dates were nearing and they cannot be used after the date of expiry, I felt that the matter should be disposed of on the basis of the records. The learned advocates appearing for the respective parties have agreed to such a course being followed.
4. The licence in question for import of the said goods was issued on 14th March, 1980. The licence is covered by the Import Policy of 1979-80. The licence has been issued with the following endorsement.
'This licence is valid for the import of the items appearing in Appendices 5 & 7 excluding the items appearing in Appendix 26, subject to the conditions that the import of a single item should not exceed Rs. 2 lacs in value as per paras 174(3), 174(5) and 174(6) of AM 80 Import Policy.'
The said licence was revalidated on 15th June, 1982 with effect from 11th June, 1982 for 6 months i.e. up to 31st December, 1982. While validating the said import licence, further condition has been imposed that 'during the extended period of shipment this licence will be subject to the provision made in paras 231(1), 231(2) and 231(4) of Import Policy 1982-83. The instruction contained in para 185(7) of Import Policy 1982-83 shall also apply.'
5. It is not in dispute that the licence in question is an additional licence granted to the Export House. Para 174(3) of the Import Policy of 1979-80 provides that the additional licence will be valid for import of the item appearing in Appendices 5 & 7 excluding, however, the items appearing in Appendix 26. Para 174(5) of the said policy provides that the additional licence will also be valid for import of raw materials, component and spares which have been placed on Open General Licence for Actual Users (Industrial).
6. Thus the said licence permits import of items appearing in Appendices 5 & 7 excluding items in Appendix 26. The said licence is also valid for import of items placed under the Open General Licence for Actual Users (Industrial). Appendix 10 specifies the categories of items which can be imported under Open General Licence. Item 1 of Appendix 10 of 1979-80 policy is in the following terms: 'Raw Materials and Components (Non-Iron & Steel Items) other than those included in the Appendices 3, 5. 8 and 9'. Drugs come under Appendix 9 and any drugs falling under Appendix 9 could only be imported by the State Chemical & Pharmaceuticals Corporation of India Limited under Open General Licence under 1979-80 Policy. In Appendix 9 an item described as Amoxycillin appears. It does not however expressly or otherwise include Amoxycillin Trihydrate. This item is not mentioned in any of the Apendices 3, 5, 6, 7,8 and 9 and can be imported under the Open General Licence being a raw materials for manufacture of specified drugs. This conclusion logically follows from the reading of para 174(5) of 1979-80 Policy to the Appendix 10 S.L. No. 1 thereof.
7. The said licence was revalidated on 15th June, 1982 during the currency of import policy of 1982-83. The shipment during the extended period was allowed under the said licence subject to the provisions made in paras 231(1), 231(2) and 231(4) of the Import Policy of 1982-83. The above restrictions which have been imposed at the time of revalidation of the said licence are contained in paras 231(1), 231(2) and 231(4). Para 231(1) restricts the import of any item which has been withdrawn from the lists of Appendices 5 & 7 of 1981-82 policy. Para 231(2) provides that additional licence issued in 1981-82 will be valid for import of items appearing in Appendices 5 & 7 of Import Policy of 1982-83 even though such items did not appear in Appendices 5 & 7 of the Import Policy of 1981-82. Para 231(4) provides that additional licence issued to the Export Houses/Trading Houses during 1981-82 will be valid for import of raw materials etc. (including items covered by Appendix 5 which can be imported under Open General Licence by Actual Users (Industrial) under the Import Policy 1982-83.
8. It is significant that although the restrictions contained in paras 231(1), 231(2) and 231(4) have been specifically endorsed at the time of re-validation of the said licence, no restriction has been imposed in terms of Para 231(3) of the Import Policy of 1982-83. Para 231(3) of 1982-83 Policy is in the following terms :
'REP licence and Additional Licence held by Export Houses/Trading Houses will cease to be valid for import of any item which could be imported under Open General Licence during 1981-82 but is no longer so in this Import Policy.'
The aforesaid restriction has not been made applicable in respect of the present licence. Accordingly there cannot be any bar in the import of the item in question. It may be mentioned that item Amoxycillin Trihydrate was not a canalised item under 1979-80 Policy but was only canalised on 16th October, 1981 under the Policy of 1981-82. Under para 185(7) of 1982-83 Policy, import of item under Open General Licence by Export Houses shall be subject to the condition, inter alia, that the shipment of goods shall take place within the validity of the Open General Licence i.e. 31st March 1983 or within the validity period of the Import Licence itself (without any grace period) whichever date is earlier. In view of the fact that para 231(3) has not been made applicable to the present licence, the items placed on Open General Licence under the Policy of 1979-80 can be imported by an Export House till 31st March, 1983 or within the validity period of import licence. In this case goods have been imported by air on 7th December, 1982 within the validity period of the licence which expired on 31st December, 1982.
9. However, it was sought to be contended that even under the import policy 1979-80 this item was canalised item and as such even under the said policy import of such item cannot be allowed.
10. This argument is based on para 195(4) of the 1979-80 policy. Para 195(4) is in the following terms:
(4) In the case of drugs appearing in Appendices 3, 5 and 9 the names mentioned : --
(i) refer to the respective active ingredients or
(ii) are as they are commonly known.
Each entry includes the salts, esters and derivatives of the same drug, if any.
11. Hence it is contended that although under item 3(2) of Appendix 9, the item mentioned is Amoxyciliin it will also include Amoxycillin Trihydrate and said item continues to be canalised item since then.
12. The other contention is that in any event in view of the restriction imposed under the policy of 1984-85 the import of the said goods is prohibited being a canalised item. It cannot be disputed that the item in question was not a canalised item during the period of issue of licence. It was specifically included as a canalised item only on 16th October, 1981. It cannot have any retrospective effect.
13. I am unable to accept the said contention. Amoxycillin and Amoxycillin Trihydrate are two different articles. Amoxycillin Trihydrate was not a canalized item under the Import Policy of 1979-80. Only Amoxycillin was included under Appendix 9 of 1979-80 policy. The Item imported is Amoxycillin Trihydrate which is having chemical formula different from Amoxycillin and it is also having its own identity as such. Further, that Amoxycillin is different from Amoxycillin Trihydrate is also confirmed by the fact that Serial No. 1 of Para 3 (Drug) of Appendix 9 of the 1981-82 Policy was amended to include Amoxycillin Trihydrate as a separate item along with Amoxycillin by the amendment made on 16th October, 1981. The description in Appendix 5 Part B of the Current Policy (1984-85) also reads as Amoxycillin (including Amoxycillin Trihydrate) excluding Amoxycillin sodium. The Department also treated the said items as two different items which will appear from the records (File No. S 43-71/82 CCI). Therefore, Amoxycillin Trihydrate not being a canalised item and not being included in Appendices 3 and 5 of 1979-80 Policy was covered under Open General Licence. As indicated earlier the licence in question is an additional licence which entitles the importer to import raw materials in terms of Para 174(5) of Import Policy for the year 1979-80 read with Serial No. 1 of Appendix 10 thereof. Appendix 10 of 1979-80 Policy mentions of raw materials and components etc. other than those included in Appendices 3, 5, 8 and 9. Amoxycillin Trihydrate is a raw material for preparation of other drugs. This fact has also been admitted by the Department in their records which have already been referred to. Thus the Amoxycillin Trihydrate can be imported under additional licence as a raw material as an item of Open General Licence.
14. The next contention which requires consideration is whether the import of the item in question is permissible having regard to the fact that under the Current Policy (1984-85) this item has been canalised and can only be imported by State Trading Corporation. A licence issued during a policy period is governed by that Policy as amended up to the date of the licence and any amendment made after the dale of issue cannol have any effect on the licence. There may be a time lag between the date of placing of an order and actual importation. Even after an importer has complied with all the necessary formalities for import of the goods under a licence, he may not complete the importation for no fault of his and when goods arrive, the import policy is found to have been amended to prohibit the import of the goods covered by the said licence. In such a case the importer will suffer loss and prejudice if he is not allowed to clear the goods on the basis of the licence. The time limit can always be prescribed by Import Policy as has been done in para 185(7) of 1982-83 Policy. If within the time prescribed the goods are imported under a licence covered by import policy of a particular year, the Customs Authorities cannot withhold the release of the goods on the ground that when the goods have arrived at the port, the import policy has been amended making the item in question a canalised Hem. The Customs Authorities have to ascertain whether the items were allowed to be imported under the import policy governing the licence and whether such goods have been imported within the time prescribed by the import policy.
15. In this connection an order of the Central Board of Excise and Customs in Customs Appeal being Order No. 721A of 1981 may be referred to. It has, inter alia, been held in that said order by the Board as follows:
'The Board has considered the different contentions of the appellants. The Board finds that ITC Public Notice No. 29/81 of 5-6-83 canalising the importation of tallow of animal origin as imported in this case has been issued for the policy period April, 1981 to March, 1982. The licences in question have, however been issued during the period 1980-81. The Board also observes that the earlier orders of the Board cited by the appellants contain clear findings which are binding on the subordinate authorities that the licence issued during a Policy period is governed by that policy as amended up to the date of issue of the licence and amendments made after the date of issue do not have any application to the licences. The Board is also in agreement with the contention of the appellants that the Additional Collector was wrong in referring to the general condition subject to which import licences are issued applying prohibitions or regulations imposed under other enactments to the imports under the licence. In the facts of the case, as the restriction sought to be imposed is not under other enactments, but under the very Imports (Control) Order under which the licences were issued, the Additional Collector's interpretation was wrong. The Board also finds that in the Government's Order No. 28-2-80 cited by the appellants relating to an importation to which provisions of para 210 of the Import Policy for 1978-79 applied, a view has been taken by the Government that the restriction was not applicable to the licences issued earlier and the provisions of that paragraph generally correspond to the provisions in para 222(3) of the Policy for 1980-81 relied upon by the Additional Collector.
7. While it might be expected of the importers to generally comply with the import restrictions in force at the time they place orders for importation, in view of the decisions of the Board and the Government cited by the appellants, the Board is unable to share the Additional Collector's reasoning that for non-compliance by the importers in such cases, the importation would be liable to confiscation. As the taw is clearly established, the remedy would lie not in taking recourse to confiscation, but to refer such importations to the Import Trade Control authorities for such disciplinary action as they may like to take against individual importers under their own authorities. The Board accordingly sets aside the Additional Collector's orders and allows the appeal.'
16. Thus the contentions of the Customs Authorities are contrary to the said decision of the Board.
17. There is yet another aspect of this matter. The Collector of Customs by his order made on December 27, 1982 in File No. S 43-71/82 CCI allowed the clearance of the said goods valued at 4,49,103 imported under the said import licence. Following the said order of Collector, the respondent No. 3 allowed clearance of the said goods worth Rs. 4,86,396.67 and Rs. 12,57,310/-. It may be mentioned that before the Collector passed the order on December 27,1982, the Appraiser gave detailed note as to whether the licence granted on 14th March, 1980 and revalidated thereafter would cover the importation of Amoxycillin Trihydrate. After going through the detailed note of the Appraiser on the said issue, the Deputy Collector submitted to the Collector a note on 27th December, 1982 in the following terms :
'Having regards to all facts and circumstances keeping in view that the goods is raw material for preparing medicines and keeping in view Board's judicial decision and considering the importer's contention we may release the consignment and inform J. C. C. I. &E;'
18. Thereafter Mr. T. S. Swaminathan, the then Collector passed the order dt. 27th December, 1982 directing that the said licence may be accepted. His order is in the following terms :
'The goods in question were not canalised item during the period of issue of the licence. It has been included as a canalised item only in terms of Public Notice No. 51-ITC (PW)/81 dt. 16-10-81 and hence cannot have a retrospective effect. Even during the re-validation period, the restriction has been only with reference to sub-paras (1), (2) and (4) of para 231, sub-para (3) has been specifically omitted to be mentioned there which restricts the OGL items, In view of this, the licence may be accepted.'
19. It may be mentioned that the Appraiser in his note also took into consideration the fact that the Amoxycyllin Trihydrate had been cleared by the Bombay Customs House under a similar licence. Thus the licence of the petitioner was accepted by the Collector. Similarly another licence for similar items in the case of Jayanti Oil Mill Private Limited was also accepted by the Customs Authorities. It is also pertinent to mention that the first clearance was made under the said licence on the basis of the order of the Collector dt. 27th December, 1982 referred to above. Thereafter, the part consignment was released by the Deputy Collector by the order dt. 13th January, 1983. He has followed the order of the Collector. He observed that the goods had been detained in the airport since 7th December, 1982 and as such quick clearance should be made after accepting the licence keeping in view of the Collector's order.
20. When the question of release of the balance quantity of the goods arose the Department has purported to re-open the entire issue. The present Collector has taken a contrary view on the licence. He has asked for permission of the Board for preferring an appeal, as according to him the order passed by the then Collector of Customs releasing the said goods on 27th December, 1982 was not correct.
21. The Collector in his letter to the Board has, inter alia, stated that Ammoxycillin Trihydrate was a canalised item during the Import Policy 1979-80 to the Import Policy of 1983-84 and hence cannot be considered as an Open General Licence item. It appeared to him that the order passed by the Collector of Customs on 27th December, 1982 'is not in conformity with the existing instruction and prevalent practice regarding the interpretation of the validity of such licence. Hence it is submitted that the Board may examine the issue and pass suitable order under Section 129D of the Customs Act, 1962 so that the case could be referred to CEGAT for fresh order'. It is, therefore, evident that the Customs Authorities did not release the part of the goods covered by the licence, which was accepted by the Collector of Customs on 27th December, 1982 following an Appellate Order of the Central Board of Excise and Customs, on the ground that the Collector of Customs was intending to prefer an appeal before the Tribunal against the said order. In my view such a course cannot be permitted. The licence has already been accepted and clearance of part of the goods has already been allowed. There is no question of any further examination of the licence. The authorities concerned are bound by the order of the Collector of Customs unless the order is revised or set aside by the Appellate Tribunal. In this case no appeal has been preferred as yet. There was also a doubt in the mind of the authorities as to whether such an appeal to the Tribunal is barred by limitation or not. This fact will appear from the notes made in the relevant file.
22. The relevant notes are to the following effect:
'......The issue here is regarding clearance of Amoxicillin Trihydrate against an Additional licence revalidated for shipment during 1982-83 policy period when the goods were under the canalised list and was no more under OGL for actuai user. Such a licence was accepted as per Collector's in File No. S. 43-71/82 C.C.I. placed below, On the basis of Collector's order in two other cases similar licence was accepted under the orders of A.C. and D.C.
In this connection, kind attention is drawn to Collector's order in note sheet IX of File No. S. 43-71/82 CCI for making a reference to the Board for orders to file an appeal to the Tribunal against Collector's order for accepting the licence. The reference in that file has been made on 14-3-84. But no order for filing an appeal to Tribunal has yet been passed by the Board. In the meanwhile the Board has asked for a copy of the order dt. 27-12-82 passed by Collector of Customs, Calcutta. The time limit under Section 129D for passing an order by Collector or by the Board for making a reference to both (Appeals) or to the Tribunal has been reduced from 2 years to one year vide Finance Bill, 1984. This bill has received the President's assent on 7-5-84 and has become the law from that date. It appears any order by the Board for making a reference to the Tribunal in the case where Collector passed an order on 27-12-82 is now time barred. Similarly, any order by Collector for making a reference to Collector (Appeals) against the orders dt. 21-4-83 passed by A.C. in File No. 8.60 (Misc)-223/83 CCI and by D.C. on 13-1-83 in F. No. S. 49-83/82 CCI is time-barred (The case file of M/s. Mangla Brothers where A.C. passed order on 22-2-83 as reported in note sheet V, is not available here. However, it appears that the position in that case also is the same).
In the circumstances, it appears that there is no other alternative but to release the goods against the ex-bond B/E submitted by the party in the two cases under reference.
Submitted for information and orders.
Collector please discuss.
Since the order by the A.C. and D.C. was passed under the Customs Act before the amendment, the two year time period will apply. Therefore please make an appeal to the Collector of Customs (Appeals). On the merits I have already considered the case and I am satisfied that there are grounds to file an appeal. I have already made such reference to the Board as in my letter No, S.43-71/82-CCI dt. 14-3-84.
Sd/- (S. Mukhopadhyay)
23. It is thus evident that the respondents are proceeding on a change of opinion on the same facts. The decision taken by the then Collector of Customs cannot be reviewed by the present Collector. The goods arrived on 7th December, 1982. The licence was accepted on 27th December, 1982 by the then Collector. Since then no action was taken to file an appeal before the Appellate Tribunal. The present Collector of Customs has no authority to revise the earlier order passed by another Collector of Customs. He cannot sit in appeal over the decision of his predecessor. Under Section 129D of the Customs Act 1962 the Collector may examine the records of any proceeding in which the Authority subordinate to him passed any decision or order and may by order direct such authority to apply to the Collector (Appeals) for determination of such point as may be specified by the Collector of Customs. In this case the licence was accepted by the then Collector of Customs who passed order on 27th December, 1982. Following the said order the Assistant Collector and Deputy Collector released part of the consignment covered by the said licence. Therefore, there is no independent order of the Assistant Collector or the Deputy Collector. So long as the order of the Collector of Customs is not set aside, all the subordinate officers are bound to follow the said order. Simply because reference has been made to the Board for permission to prefer an appeal against the order dt. 27th December, 1982 of the then Collector, there cannot be any ground for withholding the release of the goods in question. It is for the Tribunal to consider whether any stay should be granted or not, if an appeal for stay is made before it by the Revenue. The view taken by the Board is that the goods are not liable to confiscation even if there is any violation of the import policy. It is for the Chief Controller of Imports & Exports to take appropriate decision in the matter. It is very surprising how the Collector could act contrary to the decision of the Board rendered as an Appellate Authority. It also appears to be somewhat unusual and contrary to the Departmental practice that while writing to the Board on 14-3-84, the present Collector did not even refer to the Appellate order of the Board relied on by the then Collector in his order which is sought to be reviewed by him. In all fairness he should have given a clear and complete, true and fair picture to the Board. There must be finality somewhere in the order passed by the adjudicating authorities. They cannot go on changing their views on same set of facts leaving the importers on their mercy and creating an atmosphere of uncertainty. The appellate and administrative orders of the Board are binding on the Collector of Customs and his subordinates and are intended to be obeyed by them.
24. Even in the order of the Collector passed on 26th May, 1984 there is no direction that pending the decision of the Board regarding filing of appeal against the order of Collector dt. 27th December, 1982 the goods should be withheld. As indicated earlier, the -goods in question are drugs and are used as raw materials for preparation of other drugs and they will be rendered useless after the specified date of expiry. In this case balance of convenience is in favour of the assesee and the goods ought to be released to the petitioners particularly when they are not liable to confiscation.
25. Some to her notes in the file are required to be referred. The said notes are to the following effect :
'Discussed with D.C.(P) at C.H., who has specifically ordered not to allow ex-bond clearance till finalisation of review to be made to Collector (Appeal) as per Collector's order at N.S. VII. He has also ordered to release the Ex-bond B's/E to the party's on receipt it required by the party after making endorsement on the Ex-bond BVE to the effect that 'As per Collector's order in file S 60 (Misc)-132/84 CCI review is being sought to Collector (Appeal) against the order of acceptance of licence submitted earlier. Party may submit another valid licences. If any.
The representative of M/s. Mangla Bros, has come to-day to take back the Ex-bond B/E which may be given to them on receipt after endorsement as above, pi.
PI. take n/a as
per order of DC(P)
Complied with pl.
Party's representative has taken back Ex-bond B/E of M/s. Jayanti Oil Mills Pvt. Ltd. But Ex-Bond of M/s. Mangala Bros, are lying in the file pl.
26. There cannot be any appeal to the Collector of Customs (Appeals) in respect of the orders passed in this case by the Assistant Collector or Deputy Collector inasmuch as it will indirectly permit an appeal against an order passed by the Collector of Customs accepting the licence against which an appeal to the Tribunal has been proposed. The Collector (Appeals) cannot decide the legality or propriety of any order passed by the Collector of Customs. It is to be decided by the Tribunal. Therefore, direction for filing an appeal from the order of the Assistant Collector and Deputy Collector before the Collector of Customs (Appeals) is misconceived and cannot be a ground for withholding the release of the goods.
27. I have not been able to appreciate the remarks in the aforesaid note that 'the party may submit another valid licence, if any'. If it is the contention of the Customs Authorities that the goods in question are canalised items then there cannot be any licence for import of such goods by any one other than the State Trading Corporation. It is not in dispute that the licence which the petitioner is having is a valid licence. The material in question can be imported under the licence and the restrictions contained in the 1984-85 Policy will not apply. The licence for import was issued on 13th April, 1980 and the restrictions if any till the date of issuance of the licence and imposed at the time of revalidation of the licence will only apply. If the interpretation of the licence in the light of the import policies is open to doubt the construction most beneficial to the subject should be adopted. Thus all the contentions for withholding the release of the goods mast fail.
28. For the foregoing reasons, I am of the view that the respondents have no jurisdiction to withhold the delivery of the goods in question any longer. The respondents, therefore, are directed to forthwith release the goods to the petitioner upon payment of the duty already assessed.
29. Let a plain copy of this order countersigned by the Assistant Registrar (Court) be handed over to the learned Advocate appearing for the parties concerned.