JUDGMENT
Pendse, J.
Rule. Returnable forthwith. Shri Vyas waives service on behalf of the respondents. Heard counsel.
1. The short question which falls for determination in this petition filed under Article 226 of the Constitution of India is whether the Cloves which are imported by the petitioner fall within Item 169 in List 8 of Appendix 6 of Import & Export Policy April 1990 – March 1993. Item 169 reads as follows :
“169. Drugs/Drug intermediates not elsewhere specified.”
It is not necessary to set out the facts in great detail as the fact of import under the licence dated December 5, 1990 is not in dispute.
2. The petitioner has secured licence dated December 5, 1990 by transfer. The licence enables the actual users to import goods as per Paras 220(2) and 220(1) of Policy of AM 1990-93 of Policy Book subject to conditions stipulated in Paras 220 13 1D. In pursuance of this import licence the petitioner imported cloves and filed Bill of Entry on March 11, 1991. The petitioner complains that the respondents are withholding the clearance of the said goods on the ground that the import is not valid.
3. As several petitions are filed by the importers of cloves, we felt that it is desirable that one of the petitions should be finally disposed of to avoid multiplicity of litigation. Accordingly, we have heard Shri Mehta, learned counsel for the petitioner, and Shri Vyas on behalf of the respondents at length. As mentioned hereinabove the question which falls for determination is whether the cloves can be treated as drug or drug intermediate. Shri Mehta relied upon the certificate issued by Italab Private Ltd. where it is claimed that clove oil is used in medicines and is an ingredient in medicinal products. Clove oil is used as ingredient for relief of toothache. Relying on this certificate Shri Mehta urged that clove should be treated as a drug. Reference was also made to Pharmacopoeia and dictionaries to claim that clove can be described as a drug. Reliance was placed on the Merck-Index, 9th Edition page 2371 where ‘clove ‘is described as “dried flower-buds of Eugenia caryophyllata Thunb”. Shri Mehta also relied upon the Import Export Policy of April 1983 – March 1984 where the cloves are set out as the Ayurvedic name of the crude drug. Relying on this material it was urged that the clove should be treated as a drug and therefore squarely falls in Item 169 of List 8 Appendix 6 of Policy 1990-93. Shri Vyas, learned counsel appearing on behalf of the respondents, on the other hand submitted that the clove imported by the petitioner can by no stretch of imagination be described as drug or drug intermediates. Shri Vyas submitted that it is not permissible to rely upon dictionary meaning or the meaning of the expression “clove” set out in pharmaceutical books to ascertain whether clove should be treated as ‘drug or drug intermediates’ for the purpose of import in accordance with the Import Policy. Shri Vyas submitted, and in our judgment with considerable merit that the proper test to be applied is to ascertain as to how the item is known in the market dealing in cloves. It is impossible to imagine that the person who wants to buy cloves would go to a drug store. In our judgment it is impossible to suggest that the cloves are drugs or drug intermediates. It is possible that cloves may be one of the ingredients for manufacture of some of the drugs but that cannot lead to the conclusion that cloves by themselves are the drugs or drug intermediates. In our judgment, cloves must fall under the heading of spices.
4. Shri Vyas submitted that under Chapter XIII of the Policy an importer is required to have a specific licence for import of spices and paragraph 167 demands that import of cloves will be allowed against specific licence. Paragraph 167 further prescribes that such licence may be granted to those who imported the items during any of the financial years from 1983-84 to the preceding licensing year. The import licences are to be issued on the basis of the best year’s imports of an item from 1983-84 to the preceding licensing year. The percentage entitlement as will as minimum value of licence will be as notified by the Chief Controller of Imports & Exports. Shri Vyas submits that the petitioner did not secure such a specific licence for import of cloves and the import made under the additional REP licence was not valid. Shri Mehta did not dispute that if the cloves do not fall within the expression “drugs or drug intermediates” then the import is not permissible under the additional REP licence. Shri Vyas pointed out that on November 29, 1988 the Department had published ITC Public Notice No. 82 making it clear that import of cloves was not permissible under OGL facility. Shri Vyas submitted that inspite of the public notice it was observed that imports of cloves were cleared by the Customs authorities at Bombay and Madras by imposition of minor fines or in some cases even without any fine. The Chief Controller of Imports & Exports thereupon issued directions of March 27, 1991 to the effect that such clearances are not permissible under additional and REP licences and the specific licence is required for import of cloves.
Shri Mehta submitted that inspite of the earlier public notice of the year 1988 the import of cloves was permitted without a specific licence as contemplated under Paragraph 167 of Chapter XIII of the Policy. Merely because the Customs Authorities at Bombay and Madras permitted such clearances that cannot confer right upon the importers to claim that import of cloves does not require a specific licence under Paragraph 167. Shri Mehta also referred to the public notice dated December 14, 1990 and urged that where the item falls within the expression “drugs/drug intermediates not elsewhere specified”, then the import is permitted as an OGL item under the REP licence. The submission has no merit, because once it is found that cloves do not attract the expression “drugs and drug intermediates” as set out in Item 169 of List 8 of Appendix 6 of the Policy, then the question as to whether such goods are specified elsewhere does not arise. Even assuming that the cloves attract Item 169 and are drugs or drug intermediates, still as the cloves are specifically referred to in paragraph 167 of chapter XIII of the Policy, the import without the specific licence is not permissible. In our judgment, the action of the Customs authorities is not permitting clearance cannot be faulted with and the petition must fail. The licence relied upon by the petitioner is not valid for the import of cloves.
5. Accordingly, rule is discharged with costs.