MJ. EXPORTS LTD. AND ANR. versus CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE

Citation: [1992] 3 S.C.R. 300 · Decided: 14-05-1992 · Supreme Court of India · Bench: S. RANGANATHAN · Disposal: Dismissed

Judgment (excerpt)

A 
MJ. EXPORTS LTD. AND ANR. 
'r 
v. 
CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE 
TRIBUNAL, BOMBAY AND ORS. 
B 
MAY 14, 1992 
[S. RANAGANATHAN, V. RAMASWAMI AND YOGESHWAR 
DAYAL, JJ.] 
~ 
Customs Act, 1962: Sections 2(33), 25, 45, SJ, 53, 54, 59, 68, 69, 74, 
c 113(d) & 114. 
-
Import-Export Policy 1988-91: Paras 22, 23, 24(1), 174(1}-Appendix 
6--List 2, Item 36--List 3, Item 37. 
Imports (Control) Order, 1955: Clauses JO (C), 11(1) (dh 11(4}-
~ 
D Schedules /,II, III & V. 
Exports (Control) Order, 1988: Clause 3,15 (g). 
Bill of Entry (Forms) Regulations, 1976: Regulation 3-Forms /,II and 
III 
E 
"Haemodialyser''-Life Savings Equipment-Exemption from Customs 
~-
duty-Import under Open General Licence-Customs Clearance obtained for 
"Home Consumption''-Goods repacked and'' exported-Confiscation and 
Penalty Order-Validity of-Held the· export of goods was impliedly bamd 
---
under the conditions of Open General Licence-Goods exported were 
F 
"Prohibited goods"-Confiscation and penalty order held justified. 
• 
Interpretation of statutes-Provisions should be construed harmonious-
/y making it meaningful in the context. 
G 
Practice and Procedure-Raising a fresh plea involving investigation of 
facts at t~e appellate stage-Permissibility of. 
Words & Phrases : 
y--
"Home Consumption''-"Stock and sale"-Meaning of. 
H 
The Imports (Control) Order, 1955 provides that the items of goods 
300 
-
-
Ill 
MJ. EXPORTS v. CUSTOMS EXCISE TRIBUNAL 
301 
set out in Schedule 1 to the said order cannot be imP,orted except under a A 
Licence or Customs cleara.nce permit. Clause 11(4) of the Order, however, 
empowers the Central Government to issue an Open General Licence 
(OGL) permitting the import of such goods subject to the conditions 
specified. Appendix 6 to the Import-Export Policy 1988-91 deals With 
categories of goods that can be imported under an Open General Licence B 
and lists out the categories of importers, the items allowed to be imported 
by them and the conditions governing such importation. Item 36 of this 
Appendix permits the import, under OGL, "by all persOJ!S" of Life- saving 
equipment as per List 2 of the Appendix and their spares. List 2 which 
contains the List of life saving equipment allowed for import under OGL 
includes, as item no. 27, "Haemafiltration instrument/haemo-dialysers and C 
~ccessories/spares thereof. By a Notification issued by the Government of 
India under Section 25 of the Customs Act, 1962 the Haemodialysers and 
accessories thereof were exempted from duty. The Haemodialysers are, 
however, not included in Schedules I and III of the Exports (Control) 
Order, '1988, clause 3 of which prohibits or restricts the exports of items D 
' of goods specified in the two s.chedules. 
The appellant, a recognised trading house carrying on business as 
Exporters, imported Haemodialysers from West Germany under Open 
General Licence and obtained the import clearance of goods from Bombay 
Customs House for "Home consumption" free of duty by relying on the E 
notification granting exemption from custom duty. After clearance the 
goods were taken to Ankleshwar factory at Gujarat where they were 
re-packed and presented to kandla port for export to U.S.S.R. The custom 
authorities detained the goods for examination because it was of the 
opinion the re-export of goods imported under Open General Licence was F 
not permissible except with specific approval of Import-Export authorities. 
During the pendency of the proceedings before the Collector, the appellant 
obtained a No Objection Certificate of the Reserve Bank of India for export 
on "humanitarian grounds" that the goods wt;re needed for the help of the 
victims of the Armenian Earthquake in Russia and consequently the goods • 
were exported. 
G 
The Customs authorities, with the appellant's concurrence, made a 
reference to the Chief Controller of Imports and Exports under para 24.1 
of the Import-Export policy who clarified that the imports under the OGL 
and certain other licences were entirely meant for use within the country H 
302 
SUPREME COURT REPORTS 
[1992) 3 S.C.R. 
A 
and therefore cannot be allowed for re-exports as such. 
B 
By its order dated 22.10.1990 the Collector of Customs held that the 
goods exported were liable to confiscation under section 113(d) of the 
Customs Act and imposed a penalty of Rs.SO lakhs under section 114. 
However, the Collector held that the goods imported were not liable to 
import duty~ The appellant pr

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