ORDER
T.P. Nambiar, Member
1. This is an appeal filed by the appellants against the impugned order passed by the Commissioner (Appeals). In para 7 of the impugned order, the Commissioner (Appeals) held as follow:–
Further, from the copies of the Bills of Entry rotation No. 100/ 1995, Vessel name: TIGERBAY V. 371, duty paid on 6.11.95; B.E. rotation No. 1273/95, vessel name: Oriental bay-V-5700″, duty paid on 11.1.96, B.E. rotation No. 619/96, vessel name; SVI KDND SIN: duty paid on 11.6.96; and finally, B.E. rotation No. 739/ 96, Vessel Name: ZIM ALEXANDRIA, DUTY PAID. On 8.7.96, all pertaining to the appellant No. 1 in respect of Galangal roots, it is seen that the goods have been allowed to be cleared by the Madras Custom House. Thus, even assuming that Galangal roots are not crude drug, but only a consumer goods figuring in the Restricted List, the same is to be allowed clearance in the light of the above clarification as appearing in the Import Policy read with ITC (HS) classification. In the light of the above, the first appeal No. 7/96 is allowed with consequential to the appellants.
2. The Ld. JDR drew my attention to the grounds of appeal and stated that in para-2 of the grounds of appeal, the department has urged as follows:–
2. The individual policy applicable to the Galangal Roots vide EXIM Code Entry Sl. No. 121120 03 applicable at the time of importation is as follows.
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Exim Code Item Description Policy Nature of the Public
Restriction Notice
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12112003 Galangal Rhizomes FREE Item of this heading
and Roots including which can be directly
Greater Galan-gal consumed without proc-
essing as well as those
which appear in Appendix-
XLVIII of the Hand Book
Procedure
1992-97 (Vol. I) shall
not be permitted freely
for import.
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Though it has been mentioned ‘FREE’ in Col. 3 (Policy), it has to be read with Column 4 (Nature of Restrictions) and from this it is clear that the goods imported are not permitted to be imported freely since the goods under import is directly consumable without much further processings.
3. He, therefore, stated that the whole policy is to be read together
and there is nature of restriction and this scope of the restriction
was not dealt with in the impugned order.
4. The Learned consultant Shri I. Arokiasamy appearing for the respondents stated that the above policy which is restricted in para-2 of appeal goes to show that Galangal is freely importable. Therefore, he stated that when Galangal is freely importable, the question of restriction does not apply to the same. He also stated that in major ports, the same is allowed freely and the Commissioner (Appeals) has taken note of the same. Therefore, he stated that the order is legal and proper.
5. I have considered the submissions. It is now seen that the entry in the policy is mentioned in para-2 of the appeal itself cited supra. The entries in the policy are to be read together and not separately. In the second column, the item is shown as ‘Galangal’ and in the third column, it mentioned as “FREE” and in the fourth column, there is Nature of Restriction mentioned therein. Therefore, the Id. consultant stated that the restriction applies only where it is not FREE. If it is not free, then against that column this restriction should not have been mentioned. If it is not free, then the question of mentioning any restriction does not arise as it is not freely importable. Therefore, this column No. 4 has to be read along with columns 2 & 3 and in my view, the Commissioner (Appeals) should have given a finding whether this item can be directly consumed without any processing. He has not given any such finding in this regard. On the contrary, the Addl. Commissioner has given a finding that this can be consumed.
6. It is further stated by the Ld. consultant that the items are freely being imported in major ports. But the Commissioner (Appeals) has recorded this plea. But there was no evidence which was cited by him in his order with respect to this fact. This fact also requires to be looked into. However, it is now clearly enunciated by the Hon’ble Supreme Court that merely because at some places some items are cleared that does not bind the other authorities to follow the wrong procedure. These are the principles laid down by the Supreme Court which should be looked into by the Commissioner (Appeals). He should also enter a finding as to whether the Galangal Rhizomes and Roots are directly consumable or not in order to come to a correct finding. This not having been done, the impugned order is not proper.
7. Accordingly, 1 set aside the impugned order and remand the matter to the Commissioner (Appeals) for de novo consideration and more particularly, by considering whether the same is directly consumable without any processing. He should also take into consideration as to what are the other imports and he should mention those imports specifically by mentioning the Bills of Entry, after the respondents produce the same before him and then taking into consideration overall aspects, he should pass a speaking order in this regard. The appeal is allowed by way of remand.
Pronounced and Dictated in the Open Court