Per Shri S.Kalyanam : Pursuant to the Order of the High Court of Madras dated 10.5.1994 directing the Tribunal to "dispose of the petition "on merits" and in accordance with law within four weeks from the date of receipt of the copy of the order(on 13.5.94) either from this Court or on production of the same by the Writ petitioner whichever is earlier" the petition was listed and came up for hearing on 30.5.94 and was adjourned to 6.6.94 and after hearing the parties, to enable the SDR to take instructions, the matter was adjourned to this date.

2. Shri Alagar Swamy, the learned Senior Counsel for the petitioner contended that there was a firm commitment for import of the goods in question prior to 14.9.1986 and there was no violation of any provisions of the Customs Act, 1962 by the petitioner. It was further contended that imposition of fine and penalty even if called for should be on the basis of margin of profit for which market price has to be taken into account and the Tribunal has not considered this aspect in their order. On the above pleas, the High Court found that the pleas "merit acceptance" and directed re-consideration of the issue by the Tribunal. The learned Counsel therefore contended that the High Court having found that the pleas "merit acceptance," directed reconsideration, and the Tribunal has to consider the above order of the High Court in regard to firm commitment and the other pleas. The learned Counsel submitted that the goods were permissible for import under OGL upto 14.9.93 and it was for the first time on 14.9.93 that the goods were brought under the restricted items under the relevant policy. The learned Counsel contended that in the impugned order the Collector has found that the goods were permissible for import under OGL right through and only from 14.9.93 "the policy appears to have been changed". It was contended that this change of policy was never communicated to the Public at all and clarification in this regard was communicated only to licensing authorities and the Department of Customs and the Customs authorities also came to know about it only on 3.11.93 and the appellants/petitioner came to know about it only on 11.11.1993. While one consignment was shipped on 15.9.93 the other consignment was shipped on 28.9.1993. Since the petitioner did not have any intimation about the change in the policy and since the goods had been shipped prior to communication of the change in policy and since the Customs Department itself allowed clearance of similar goods even on 18.10.93 and 12.10.93 in respect of the same party in respect of similar goods, the order is not sustainable in law. The learned Counsel contended that the petitioner cannot be found fault with since the importation was bona fide based on the prevailing practice.

3. Shri JP Gregory, the learned SDR contended that the goods were shipped after the date of communication of the clarification and the petitioner should have known about the clarification and he in this context referred to para 5 of the impugned order of the lower authority. He further submitted that Letter of Credit (LC) was not opened by the petitioner, but it was opened on behalf of the petitioner.

4. We have carefully considered the submissions made before us in regard to firm commitment. On consideration of the entire evidence on record and the pleas urged and on going through the records, we find that the following question emerges for determination, in the light of the direction of the Madras High Court:

"Whether the goods were permissible for import under OGL and whether clarification by the licensing authority dated 14.9.93 was communicated to the Public or whether the petitioner could be taken to have knowledge about the same and they imported the goods despite such knowledge".

5. During the arguments by the learned Counsel it was not disputed by the Department that the goods were allowed import under OGL right through till the clarification by the licencing auth