ORDER
K. Prakash Anand, Member (T)
1. The facts of this case which are not disputed are that the appellants imported 163 unpacked Seamless Steel Tubes valued at Rs. 2,13,263/- and presented an Import Licence for items shown in Appendix 5 of April-March 1982 Policy Book, as being required for their end product.
2. The department’s case is that the goods are hit by S.No. 662(c) of Appendix 3 of AM-82 Policy Book and that, therefore, the import of the goods is banned. The import of these goods without cover of a valid ITC licence is prohibited in terms of the Import Control Order No. 17/55 dated 7- 12-1955, in pursuance of Section 3 of the Import and Export (Control) Act, 1947 and the absence of a valid licence covering the consignment constituted an offence attracting the provisions of Section lll(d) of the Customs Act, 1962, it is alleged.
3. We have heard Shri J.R. Gagrat, Advocate for the appellants and Shri S.P. Prabhu, JDR for the respondents.
4. The learned advocate pointed out that a Public Notice No. 40 dated 14th August, 1981 was issued, according to which, Entry No. 662, sub-entry (c) of Appendix 3, relating to list of banned items was amended to read “Seamless Carbon Steel Tubes and Pipes 5 mm. to 9 mm. in sizes 60 mm. to 219 mm. outside diameter, other than those covered by Appendix 5”.
5. As soon as the Public Notice was issued, the appellants approached the Joint Chief Controller of Imports and Exports, Bombay for clarification as regards the amendments made by the said Public Notice. The Joint Chief Controller issued a clarification to the appellants on 4-3-1982, stating categorically that M.S. Seamless Steel would fall under S.No. 500 (iii) of Appendix 6 of Import Policy, 1981-82. Shri Gagrat emphasized that the redemption fine imposed is grossly disproportionate to any inadvertent offence committed by the appellants. Certainly, this is not a case where the department can hold that the conduct of the appellants was contumacious or dishonest or in conscious disregard of their obligations, it is submitted.
6. Shri Gagrat has relied on the following case law:-
1. 1983 (14) E.L.T. 1685 (Ker.) – Heveacrumb Rubber (P) Ltd. v. Superintendent of Central Excise.
2. 1985 (20) E.L.T. 80 (Tri.) – Kellner Pharmaceutical Ltd. v. Collector of Central Excise, Kanpur.
3. 1985 (19) E.L.T. 257 (Tri.) – Virchem Corporation v. Collector of Customs, Bombay.
4. 1988 (33) E.L.T. 199 (Tri.) – Jain Exports (P) Limited v. Collector of Customs and Central Excise, Ahmedabad.
7. Shri Prabhu, JDR, responds briefly and reiterates the view taken in the orders of the Additional Collector.
8. We find that the learned Additional Collector has held that the goods imported are not covered by a valid licence, in view of the wordings of Public Notice No. 40 dated 14-8-1981, which refers to “Seamless Carbon Steel Tubes and Pipes”. On the other hand, there is no explanation as to why this Public Notice should not, in the appellants case, be read alongwith the clarification specifically issued to them by the Office of the Ministry of Commerce, Government of India, Joint Chief Controller of Imports and Exports, that M.S. Seamless Steel fall under S.No. 500(iii) of Appendix 6 of Import Policy, 1981-82. It is true that the Public Notice refers broadly to Seamless Carbon Steel Tubes and Pipes, which should normally cover Seamless Stainless Steel Tubes and Pipes also, but, I.T.C. authorities have themselves clarified that Seamless Stainless Steel Tubes and Pipes of the description, proposed to be imported by the appellants were outside the purview of S.No. 662(c) of Appendix 3 of AM-83 Policy Book. It is difficult to understand how the appellants can be penalised for proceeding with the import in accordance with this clarification. It is noteworthy that in this case, appellants were cautious enough to obtain a clarification from the I.T.C. authorities before making the import. There can, therefore, hardly be any imputation of mala fides on their part.
9. Even if we are to agree with the view of the Additional Collector that the goods are liable to confiscation, the facts and circumstances did not justify imposition of any fine. A caution would have served the purpose.
10. In the circumstances, we set aside the fine levied in lieu of confiscation. The appellants be granted consequential relief.