Sav Udyog Viniyog Limited and Anr. Vs. Union of India and Ors.
EmailAppeal: Civil Appeal No. 5658 of 1994
Petitioner: Sav Udyog Viniyog Limited and Anr.
Respondent: Union of India and Ors.
Apeal: Civil Appeal No. 5658 of 1994
Judges: B.N. KIRPAL & N. SANTOSH HEGDE, JJ.
Date of Judgment: Jan 08, 2001
Appearances:
“&” |
Head Note:
EXCISE
Import Control Policy, 1985-88
Appendix 17 – In-shell almonds – If seeds, bulbs or mother plant imported for germination. Held that High Court has rightly held them to be ‘not seeds’ under relevant entry. (Paras 3, 4)
JUDGEMENT:
ORDER
1. In this appeal, the question which arises for consideration is whether the in-shell almonds imported by the appellants were seeds/bulbs/mother plant germ plasm.
2. It appears that the appellants utilised replenishment licence for the import of this article. The licence was granted on the basis of the exports which had been made. The relevant entry in appendix 17 of the import control policy for the year 1985-88 was as follows:
Sl. Export product Import replenishment Materials permitted Remarks
No. percentage for import
1 2 3 4 5
G.2 Other fresh fruits/
vegetables/vegetable
seeds/flowers/
flower seeds :-
(i) (a) Fresh fruits, 10% (a) Packing material, (1) in case of
vegetables and namely, LDPE, HDPE, item (c) in
flowers. Polypropy lene, column 4,
‘ plastic pots, please
GRP roof lite sheets, see para 8 of
kraft, liner and ‘General Con- fluting media, grape ditions in
guard paper, kraft paper, this
tissue paper for Appendix.’
wrapping peat moss.
(b) Sodium Metabi-
sulphite (10%).
(c) Chemicals appearing
in Appendix 3 and used
in cultivation/growth of
fruits, vegetables and
flowers, and freshening
chemicals for fruits,
vegetables and flowers.
(d) Seeds/bulbs/mother
plant germ plasm.
(e) pearlite horticulture
grade and vermiculate.
(b) Individually 10% (a) Same as items (a) to (1) Same as
quick frozen (e) against Sl. No. remark (1) in
vegetables. G.2 (i) (a) above. column 5
against Sl.
No. G2 (i) (a)
above.
3. The goods imported were not cleared on the ground that the in-shell almonds imported by the appellants were not seeds as contemplated by the aforesaid entry in appendix 17. Having been unsuccessful before the customs authorities who had levied a redemption fine of Rs. 6 lakhs and additional penalty of Rs. 50, 000/-, the appellants filed a writ petition before the Bombay High Court. The single judge dismissed the petition and an appeal was filed before the division bench. By the impugned judgment, the division bench came to the conclusion that what was imported by the appellants was not seeds. In this connection, the division bench observed as follows:
“The perusal of items in clause G-3 makes it clear that the materials permitted for import under clause 4 are those which had nexus to the goods which were exported and in respect of which REP licence was granted. Each of the item covered under (a), (b), (c), (d) and (e) leaves no manner of doubt that it had direct nexus or relation to the export product of fruits, vegetables and flowers. Clause (d) under item 4 refers to “seeds/bulbs/mother plant germ plasm”. It is obvious that expression “seeds” must be read as referring to seeds of fruits, vegetables and flowers. Mr. Vahanvati submitted that the expression “seeds” is a generic term and it need not have any nexus to the export products under clause 1. It is not possible to accede to the submission of the learned counsel. The contention that once the item imported falls under generic terms “seeds” then, the imported goods are in accordance with the licences cannot be accepted. We will assume for the purposes of this case that seeds of almonds will fall under the generic term “seeds” but that would not entitle the appellants to claim benefit of the licences which have been issued for the purpose of import of items covered under G-2. The expression “seeds” used in item G-2 is obviously not a generic term but circumscribed by limitation contained in the clause itself. The expression “seeds” have a nexus to fresh fruits, vegetables and flowers and such seeds are permitted to be imported provided they are to be used for the purpose of germination or plantation. It is not the claim of the appellants that seeds of almonds are imported for the purpose of germination or plantation. The appellants do not dispute that the seeds of almonds will be sold as dry fruit but claims that once the imported goods fall under the category of “seeds”, then, irrespective of the purpose for which they are imported, the import must be held to be in accordance with the licence. It is not possible to accede to the submission. In our judgment, the limitation or the restriction in respect of import of seeds are intrinsic in clause G-2 and the seeds to be imported cannot be de hors the export products referred to in clause G-2. Under these circumstances, the contention of the appellants that the seeds of almonds fall under G-2 cannot be accepted. In this view the seeds of almonds are not seeds is correct or otherwise.”
4. After hearing the counsel for the parties, we are in agreement with the aforesaid conclusion that what was imported by the appellants was not seeds for germination or plantation and would not fall under the relevant entry of seeds/bulbs/mother plant germs plasm. This being so, the present appeal fails and is dismissed. No order as to costs.
1. In this appeal, the question which arises for consideration is whether the in-shell almonds imported by the appellants were seeds/bulbs/mother plant germ plasm.
2. It appears that the appellants utilised replenishment licence for the import of this article. The licence was granted on the basis of the exports which had been made. The relevant entry in appendix 17 of the import control policy for the year 1985-88 was as follows:
Sl. Export product Import replenishment Materials permitted Remarks
No. percentage for import
1 2 3 4 5
G.2 Other fresh fruits/
vegetables/vegetable
seeds/flowers/
flower seeds :-
(i) (a) Fresh fruits, 10% (a) Packing material, (1) in case of
vegetables and namely, LDPE, HDPE, item (c) in
flowers. Polypropy lene, column 4,
‘ plastic pots, please
GRP roof lite sheets, see para 8 of
kraft, liner and ‘General Con- fluting media, grape ditions in
guard paper, kraft paper, this
tissue paper for Appendix.’
wrapping peat moss.
(b) Sodium Metabi-
sulphite (10%).
(c) Chemicals appearing
in Appendix 3 and used
in cultivation/growth of
fruits, vegetables and
flowers, and freshening
chemicals for fruits,
vegetables and flowers.
(d) Seeds/bulbs/mother
plant germ plasm.
(e) pearlite horticulture
grade and vermiculate.
(b) Individually 10% (a) Same as items (a) to (1) Same as
quick frozen (e) against Sl. No. remark (1) in
vegetables. G.2 (i) (a) above. column 5
against Sl.
No. G2 (i) (a)
above.
3. The goods imported were not cleared on the ground that the in-shell almonds imported by the appellants were not seeds as contemplated by the aforesaid entry in appendix 17. Having been unsuccessful before the customs authorities who had levied a redemption fine of Rs. 6 lakhs and additional penalty of Rs. 50, 000/-, the appellants filed a writ petition before the Bombay High Court. The single judge dismissed the petition and an appeal was filed before the division bench. By the impugned judgment, the division bench came to the conclusion that what was imported by the appellants was not seeds. In this connection, the division bench observed as follows:
“The perusal of items in clause G-3 makes it clear that the materials permitted for import under clause 4 are those which had nexus to the goods which were exported and in respect of which REP licence was granted. Each of the item covered under (a), (b), (c), (d) and (e) leaves no manner of doubt that it had direct nexus or relation to the export product of fruits, vegetables and flowers. Clause (d) under item 4 refers to “seeds/bulbs/mother plant germ plasm”. It is obvious that expression “seeds” must be read as referring to seeds of fruits, vegetables and flowers. Mr. Vahanvati submitted that the expression “seeds” is a generic term and it need not have any nexus to the export products under clause 1. It is not possible to accede to the submission of the learned counsel. The contention that once the item imported falls under generic terms “seeds” then, the imported goods are in accordance with the licences cannot be accepted. We will assume for the purposes of this case that seeds of almonds will fall under the generic term “seeds” but that would not entitle the appellants to claim benefit of the licences which have been issued for the purpose of import of items covered under G-2. The expression “seeds” used in item G-2 is obviously not a generic term but circumscribed by limitation contained in the clause itself. The expression “seeds” have a nexus to fresh fruits, vegetables and flowers and such seeds are permitted to be imported provided they are to be used for the purpose of germination or plantation. It is not the claim of the appellants that seeds of almonds are imported for the purpose of germination or plantation. The appellants do not dispute that the seeds of almonds will be sold as dry fruit but claims that once the imported goods fall under the category of “seeds”, then, irrespective of the purpose for which they are imported, the import must be held to be in accordance with the licence. It is not possible to accede to the submission. In our judgment, the limitation or the restriction in respect of import of seeds are intrinsic in clause G-2 and the seeds to be imported cannot be de hors the export products referred to in clause G-2. Under these circumstances, the contention of the appellants that the seeds of almonds fall under G-2 cannot be accepted. In this view the seeds of almonds are not seeds is correct or otherwise.”
4. After hearing the counsel for the parties, we are in agreement with the aforesaid conclusion that what was imported by the appellants was not seeds for germination or plantation and would not fall under the relevant entry of seeds/bulbs/mother plant germs plasm. This being so, the present appeal fails and is dismissed. No order as to costs.
