None v. UNION OF INDIA & ORS

O R D E R 22.04.2025 This hearing has been done through hybrid mode. Court notices have been served in this matter. None appears for the parties. The present Appeal has been filed by the Appellant– Jain Exports Pvt. Ltd. challenging the order dated 25th August, 2009(hereinafter, ‘the impugned order’) passed by the ld. Single Judge in W.P. (C) No. 3437/91 titled Jain Exports Pvt. Ltd. v. Union of India & Ors.

5. The matter arises out of a show cause notice dated 29th April, 1985 (hereinafter, ‘the SCN’) issued to the Petitioner by the Ministry of Commerce, Office of the Chief Controller of Import and Export, New Delhi. The SCN was issued in respect of certain medical oxygen cylinders which were imported by the Petitioner.

6. The reply to the SCN was filed by the Petitioner on 13th July, 1985. This is a digitally signed order. LPA 658/2009 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/04/2025 at 13:56:36 Subsequently, a penalty order was passed on 30th May, 1991 by the Ministry of Commerce, Office of the Chief Controller of Import and Export, New Delhi wherein a penalty of Rs. 10,00,000/- was imposed as penalty and the Partners and Directors of the Petitioner Company were also barred from importing goods and from receiving importing licences.

7. The First Appeal, which was filed by the Petitioner against the penalty order dated 30th May, 1991 before the Appellate Committee Cell, Ministry of Commerce, Udyog Bhawan, New Delhi was also dismissed on 22nd October, 1991 on the ground that there is no reason for interference with the impugned order.

8. Thereafter, a writ petition bearing W.P. (C) No. 3437/91 had been filed by the Petitioner before the ld. Single Judge challenging the said order passed by the Appellate Committee. Vide the impugned order passed by the ld. Single Judge, the penalty imposed vide order dated 30th May, 1991 has been upheld by the ld. Single Judge and the bank guarantee which was furnished by the Petitioner was also permitted to be encashed.

9. The Court held that oxygen cylinders could not have been sold as respiratory systems and its parts thereof as they were specifically covered by a separate entry. Relevant portion of the impugned order is extracted herein below: “26. The third issue pertains to merits and whether empty gas oxygen cylinders were imported as per the terms of the licence, i.e. spares for artificial respiratory system. The petitioner had imported 2721 pieces of empty seamless steel cylinders. These were claimed to be imported as spares for artificial respiratory system under paragraph 186(8) read with Chapter 90.18 of Schedule 1 This is a digitally signed order. LPA 658/2009 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/04/2025 at 13:56:36 to the Order. As per the respondents, empty seamless steel cylinders fall under paragraph 115 of the Import Policy for 1981-82 for which the petitioners did not have a valid licence and in terms of paragraph 115(4) import of medical gas cylinders was permitted and allowed to meet the full requirements of the actual users. Serial No. 90.18 of the Import (Control) Order, 1950 reads as under:- "90.18 Mechano-therapy appliances; massage apparatus, psychological aptitude testing apparatus; artificial respiration, ozone therapy or similar apparatus; breathing appliances (including gas masks and similar respirators).” 27. Paragraph 115 of the export import policy is as under:- "115(1) Applications for import of Gas Cylinders will be considered by Chief Controller of Imports and Exports, New Delhi, irrespective of the value involved. The application should be made in the form prescribed for import of Capital Goods. (2) Applications will be considered, on merits, having regard to Indigenous production. The CCI&E, New Delhi will formulate suitable guidelines in consultation with the administrative Ministry and the technical authorities concerned so that import is allowed to the extent the demand cannot be met from the indigenous sources. (3) Import of LPG cylinders will not be allowed. (4) Import of medical gas cylinders will be allowed to meet the full requirement of Actual Users. (5) Import of high pressure cylinders will also be allowed as spares to Actual Users in accordance with the provisions made in Chapter 9. As components, their import may be allowed to Actual Users under the procedure for supplementary Licences as provided in Chapter 6." This is a digitally signed order. LPA 658/2009 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/04/2025 at 13:56:36

28. Serial No. 90.18 refers to artificial respirator systems. Paragraph 186 (8) of the import policy 1981-82 permits import of spares for the items falling in the various serial numbers of Schedule 1 of the Order, including Chapter 90 which includes artificial respirators. The respondents in the impugned orders have held that paragraph 115 specifically deals with oxygen cylinders and, therefore, the said paragraph would apply. There is merit in the said findings of the respondents. Oxygen cylinders are bought and sold in the market as a separate apparatus and equipment. What was covered by Serial No. 90.18 and paragraph 186(8) were artificial respirator systems and spare parts thereof.”

10. As stated above, the Petitioner and the Respondents are not being represented today.

11. This Court is of the opinion that the impugned order does not warrant any interference by this Court. Accordingly, the present Appeal is dismissed.

12. The present appeal is disposed of in said terms. Pending applications, if any, are also disposed of. PRATHIBA M. SINGH, J. RAJNEESH KUMAR GUPTA, J. APRIL 22, 2025 gs/ss This is a digitally signed order. LPA 658/2009 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/04/2025 at 13:56:36