COLLECTOR OF CUSTOMS, BOMBAY versus M/S. ELEPHANTA OIL AND INDUSTRIES LTD., BOMBAY

Citation: [2003] 1 S.C.R. 771 · Decided: 31-01-2003 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

... 
COLLECTOR OF CUSTOMS, BOMBAY 
A 
v. 
M/S. ELEPHANT A OIL AND INDUSTRIES LTD., BOMBAY 
JANUARY 31, 2003 
[M.B. SHAH AND ARUN KUMAR, JJ.] 
B 
Import Policy, 1981-82: 
Appendix Item 44:/Import Control Order, 1955; Section 3: Import of 
Mutton Tallow, a canalised item-Notice under Impori Policy substituting C 
Tallow of any animals for mutton tallow-Import of Beef Tallow under Open 
General Licence-Permissibility of-Levying of penalty-Correctness of-Held, 
since import of Bee/Tallow, a canalised item was not permitted in accordance 
with the term of licence/Import Policy, the Collector was justified in imposing 
penalty on the importer under Section I I 2 of the Customs Act-Customs Act, 
1962; Sections 112 and 125. 
D 
The question which arose in this appeal was whether import of Beef 
Tallow under Open General Licence was permissible after issuance of 
Import Trade Control Public Notice clarifying the existing description 
Mutton Tallow under Entry No.44 suhstituted by Tallow of any animal E 
origin. 
It was contended for the appellant that since the Revenue directed 
to re-export the imported goods, levying of penalty was not justified; and 
that there was no bar on import of Beef Tallow. 
Allowing the Appeal, the Court 
HELD: 1.1. It is apparent that provisions· of Law under Sections 
112 and 125 of the Customs Act operate in different fields-one requires 
imposition of penalty and other provides for confiscation of improperly 
imported goods. Confiscation of goods and thereafter permitting the 
respondent to re-export the same would ·not mean that penalty under 
Section 112 of the Customs Act cannot be levied. (776-B] 
/ 
F 
G 
1.2. It is settled law that once import of goods is canalised, it is not 
open to the holder of REP licence to import the goods which are canalised 
and that goods must be in conformity with the Import Policy at the time H 
771 
772 
SUPREME COURT REPORTS 
(2003] I S.C.R. 
A of import. 1776-D-EJ 
B 
Union of India v. Mis. Godrej Soaps Pvt. Ltd. and Anr., 1198613 SCR 
771; D. Navinchandra & Co., Bombay v. Union of India, 11987 2 SCR 989 
and Mis. Darshan Oils Pvt. Ltd. v. Union of India, 119941 Supp. 5 SCR 278, 
relied on. 
\ 
1.3. Customs, Excise and Gold (Control) Appellate Tribunal relying 
upon its earlier decision on the same issue held that the right to import 
the goods under OGL is a statutory right and cannot be over-ruled by a 
P.ublic notice and that the import of Beef Tallow which ceased to be an 
OGL item when it was canalised by the public notice is governed by the 
C Import Policy when the licence was issued and not by the public notice; 
public notice has no statutory force under SectiOn 3 of the Imports and 
Exports (Control) Act; and that since SLPs against that decision were 
dismissed by the Supreme Court summarily, import of Beef Tallow under 
OGL was not unlawful. But it is well settled law that in case where SLP is 
D dismissed without assigning any reason, that order would not constitute a 
binding prece«Jent. 1774-E-F-G; 777-E] . 
Ajit Kumar Rath v. State ofOrissa, [1999] Supp. 4 SCR 302, relied on. 
Jain Sudh Vanaspati Ltd. v. Collector of Customs, Bombay, [1990) 29 
E ECR 321 (CEGA T SB-C), referred to. 
1.4. Before issuance of licence to the respondent by Import Trade 
Control Public Notice, it was clarified that existing description 'mutton 
tallow' in Entry No.44 shall be read as any tallow of any animal origin 
including mutton tallow. The bills of entry were tendered only thereafter, 
F and at that time Import-Export Policy of 1983-84 was in force which 
prohibited import of beef tallow. Therefore, respondent has imported a 
prohibited item. Section 3 of the Import Control Order 1955, inter alia 
specifically provides that no person shall import any goods of the 
description specified in Schedule 1 except under and in accordance with 
G a licence. Respondent knowing fully well the ,import policy imported 
prohibited goods i.e. import of canalised item, namely, beef tallow and, 
' therefore, the Collector was fully justified in imposing the penalty under 
.Section 112 of the Customs Act. [777-F; 778-DI 
Jain Export Ltd. and Ors. v. Union of India, (1993) Supp. 1 SC~ 
185~ . 
H relied on. 
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COLLECTOR OF CUSTOMS, BOMBA Yv. ELEPHANT A OIL AND INDUS. LID. [SHAH, J.] 773 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4958 of A 
1994. 
From the Judgment and Order dated 18.2.1992 of the Customs Excise 
& Gold (Control) Appellate Tribunal in Appeal No. C/247
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