Sha Kishorilal Genajee vs Collector of Customs, Madras

S. Ramachandra Iyer,C.J.

This is an appeal from the judgment of Veeraswami, J., declining to issue a writ of certiorari, applied for by the appellant with a view to quash

the order of the Asst. Collector of Customs, Madras, dated 18-6-1962, confiscating certain goods imported by the appellant. The appellant is and

established importer of goods from foreign parts. For the half-years (i) April 1960 to September 1960, (ii) October 1960 to March 1961 and (iii)

April 1961 to September 1961, he filed applications on 16-6-1960, 1-6-1961 and 22-11-1961, respectively, for importing ""other lamps"" under

Serial No. 38A(f) of Part II of the Import Policy Book. Licences were granted to him for al the three half-years in January 1962. When the goods

arrived at the Madras Harbour on 13-5-1962, it was found that all the consignments were of photo flash bulbs, valued at Rs. 1,985.94 nP. The

Assistant Collector of Customs held that the gods were not covered by the licences produced by the appellant as they came under Serial No.78 of

Part V of the Red Book.

He accordingly directed their confiscation, giving at the same time an option to the appellant to clear the goods on payment of Rs. 5,360. The

appellant then filed an appeal against that order of confiscation. The appellate authority, while holding that the appellant had had imported the

goods in contravention of the terms of the licence, upheld the order of confiscation but reduced the fine to Rs. 1,985. The appellant thereupon filed

an application under Art. 226 of the Constitution to quash that order, as, according to him, the import of flash bulbs must be deemed to be

authorised, inasmuch as they would come under Serial No. 38-A(f) of Part II. Veeraswami, J. Did not accept this contention and dismissed the

application. Hence this appeal. During all the relevant periods, photo flash bulbs were included in Serial No. 78(vii)(v) of Part V, the relevant part

of which ran thus:

Electrical instruments, apparatus and appliances and accessories thereof, not otherwise specified in this Schedule, excluding telegraphic and

telephonic.......(vii) others.

(v) Carbon filament lamps, used for resistance and heating purposes, photo flash bulbs.........."" Serial No. 38A(f) of Part II, which referred to

other lamps"", stated in the remarks column that quote licences will be valid only for import of (i) mercury vapour lamps and (ii) Sodium vapour

lamps. There can be little doubt from the classification of goods adopted in the Red Book of the relevant half-years, that photo flash bulbs

imported by the appellant would come only under Serial No. 78(vii)(v) of Part V and will not be covered by licences issued in respect of goods

falling under Serial No. 38-A(f) of Part II. It, however appears that on 3-10-1961, the Government of India issued a notice to the following effect:

Attention of the public is drawn to Order No. 15/61, dated 3rd October 1961--2. The classification of carbon filament lamps used for resistance

and heating purposes, photo flash bulbs and other bulbs which were hitherto classified under Serial No. 78/V of the import trade control schedule

would now be classified under Serial No. 38-A (f)/II--Others.

The contention used on behalf of the appellant is that inasmuch as the Government of India have classified photo flash bulbs under Serial No.

38A(f) of Part II, the licences issued to the appellant, stately authorising him to import goods under that classification, would be valid to cover the

goods actually imported. This contention will not avail the appellant in regard to the consignments relevant to the half-years, April 1960 to

September 1960 and October 1960 to March 1961, for the obvious reason that when the applications for the issue of licences for those half-years

were made, that is, on 16-6-1960 and 1-6-1961, the notification had not been issued. It is, however, argued by Mr. Vedantachari that in as much

the licences were issued only on 6-1-1962 for those two half-years, such licences should be held to cover all those goods that would properly

come under Serial No. 38-A(f) of Part II on such date. We are unable to agree.

When the appellant applied for licences to import goods under Serial No. 38-A(f) of Part II, he must be deemed to have applied only for the

import of such goods as could be validly imported under that classification. In two unreported judgements, W. A. Nos. 26, 49 and 50 of 1961

(Mad) and 27, 47 and 48 of 1961 (Mad), this Court has recognised the principle that the material date, in similar cases, would be the date of the

application and not the date of the grant of permit. The licences issued to the appellant for the first two half-years would not, therefore, entitle him

to import photo flash bulbs. The order of confiscation in regard to them was, therefore, valid.

Mr. Vedantachari then contended that whatever might be the case in regard to the first two half-years, the import for the third half-year was fully

justified, as the notification of the Government of India, dated 3-10-1961 should be deemed to incorporate photo flash bulbs within Serial No. 38-

A (f) of Part II. The notification, in our view, has merely specified a change in the classification. In terms it does not amend Serial No. 38-A (f)

Part II. During the half-year, April 1961 to September 1961, photo flash bulbs were mentioned only under serial No. 78 (vii) (v). The import

policy of the Government for that half-year was published on 1-10-1961, two days prior to the notification referred to above. It was only in the

policy book of the next half-year, namely, April 1962 to September 1962, the change of classification of photo flash bulbs from Serial No. 78 to

Serial No. 38-A was incorporated.

A mere classification of goods so as to come under a particular category, so long as that classification has not been incorporated into the policy

book, cannot entitle an importer to treat it as having been adopted therein for the purpose of import. The import policy of the Government to

permit and import, should be read in the light of Columns 4, 5 and 6 in the Red Book as well. During the relevant period those columns remained

as before and the change contemplated by the notification, dated 3-10-1961 was not incorporated therein. It would not, therefore, be competent

for the appellant to import photo flash bulbs, which were expressly included in Serial No. 78 (vii) of Part V, under a licence issued in respect of

goods coming under Serial No. 38-A (f) of Part II.

We, therefore, agree with Veeraswami, J. That the Customs authorities were entitled to treat the imported goods as outside the licences issued

to the appellant and confiscate the same. The appeal fails and is dismissed with costs. Advocate''s fee Rs. 240 to be divided equally between all

the appeals.

Appeal dismissed.