Customs, Excise and Gold Tribunal - Calcutta
Atari (India) Electronics vs Collector Of Customs on 13 September, 1989
Equivalent citations: 1990(25)ECC135, 1990ECR209(TRI.KOLKATA), 1990(45)ELT321(TRI-KOLKATA)
ORDER T.P. Nambiar, Member (J)
1. These are two appeals filed by the appellant against the orders passed by the learned Collector of Customs (Appeals) in case No. S5-3243/85CAP/ITC dated 11-12-1985 and S5-3363/85CAP/ITC dated 22-1-1986. The brief facts are that the goods involved in both the appeals are loaded printed circuit boards imported by the appellant. The appellant is an actual user of the said loaded printed circuit boards. The appellant claimed that under Serial No. 565 (15) of Appendix 6 List 8 Part I of the Import Policy 1985-88 (hereinafter referred to as the Import Policy) it was permissible for it to import the said printed circuit boards under Open General Licence. The said serial No. 565 (15) allows importation under OGL of "Printed Circuit Boards other than those in Appendix 3 Part A". Appendix 3 Part A does not cover loaded printed circuit boards. Accordingly, it was claimed by the appellant that importation by it, who is an actual user, of the said loaded printed circuit boards under OGL was fully in accordance with law.
2. The Deputy Collector of Customs, however, held inter alia that loaded printed circuit boards are covered by serial No. 113 of Appendix 2 Part B of the Import Policy and accordingly the import thereof could only be made on the basis of a valid import licence and not under OGL. The importation was accordingly held to be unauthorised and the goods were confiscated under Section lll(d) of the Customs Act, 1962 and the appellant was given an option to redeem the same on payment of redemption fine. The said orders passed by the Deputy Collector were also upheld by the Collector of Customs (Appeals), Calcutta. It was submitted by the appellants that Appendix 6 List 8 Part I contains the list of "items of raw materials, components and consumables allowed for import under OGL by actual users (industrial) only, subject to actual user condition". This would be clear from the heading given at the starting of the said Part I of List 8 of Appendix 6. There is no dispute that the appellant is an actual user of the goods in question and that the same were imported by it subject to actual user condition. The said serial No. 565 (15) of Appendix 6 List 8 Part I specifically permits importation of "printed circuit boards other than those in Appendix 3 Part A". Accordingly, the importation of all printed circuit boards other than those covered by Appendix 3 Part A can be made under OGL by actual users (industrial) subject to actual user condition". The said loaded printed circuit boards imported by the appellant are not covered by Appendix 3 Part A nor it has been so alleged or contended even by the customs authorities. Accordingly, the importation of the said loaded printed circuit boards under Appendix 6 List 8 Part I serial No. 565 (15) by the appellant was fully in accordance with law. The importation of the said goods under OGL by the appellant who is an actual user (industrial) subject to actual user condition was clearly permissible under the said serial No. 565 (15) of Appendix 6 List 8 Part I.
3. The learned SDR, Sri Biswas, contended that admittedly the goods are printed circuit boards staffed with various semi-conductor device and are thus covered by serial No. 113 of Appendix 2, Part B of AM 1985-88 and that the goods imported are also components for the manufacture of colour TVs, and that in terms of serial No. 1 of Appendix 6 relating to import of items under OGL, items included inter alia in Appendix 2 are not permitted for import. It was his contention that in view of 'notes (1)' appearing below list 8 Part I of Appendix 6, there is a stipulations that entries on list 8 would not cover items or their types, compositions, categories etc. which are included in Appendices 2 to 5 and 8 which would therefore not be allowed under OGL. It was further contended that "Printed Circuit Board" appearing in Appendix 3A is a wider term covering both plain printed circuit board and populated printed circuit board and out of these two "populated printed circuit board" is specifically included in Appendix 2-B and hence it could not be imported in view of notes I of List 8.
4. It was also contended that Para 21 (c) of the Policy states that an item with a specific description in Appendix 2-(B) of Appendix 3A, will prevail over an item with a generic description in any of the items and that since populated printed circuit board being more specifically mentioned on Appendix 2-B prevails over the generic description "printed circuit board" appearing in Appendix 6, List 8, Part I. Further Para 80(1) of the Policy also precludes import of Appendix 2 Items under OGL. It was also contended that as per captions given under these appendices, Appendix 2-B covers list of "restricted items" whereas Appendix 3 covers limited permissible items and that therefore it cannot be the intention of policy to allow import of restricted items like populated printed circuit board under OGL. The learned SDR further contended that there may be some confusion regarding the scope of entry at Sl. No. 565(15) of List 8 of Appendix 6 vis-a-vis Sl. No. 607 (18) of Appendix 3A. But it is for the licensing authority to clarify the confusion and nevertheless in so far as "Populated printed circuit board" is concerned there cannot be any doubt regarding the ban as its import is under OGL.
5. The point that arises for my determination is whether by reason of Serial No. 113 of Appendix 2, Part B, the said loaded printed circuit boards get excluded from Serial No. 565(15) of Appendix 6, List 8 Part I and secondly, whether the confiscation of the goods in these two cases are legal, proper and justified and if so, whether the redemption fine of Rs. 30,000/- and Rs. 25,000/- imposed is reasonable and proper.
6. Reliance has been placed on behalf of the respondent on paragraph 80( 1) of the Import Policy and on the foot note No. (1) given at the end of Appendix 6 List 8 in support of the submission that the goods covered by Appendix 2 cannot be imported under OGL. This submission of the respondent and the reliance on the said paragraph 80(1) and the said foot note (1) is misconceived. The said paragraph 80(1) lays down only generally that raw materials, components and consumables which do not appear in Appendices 2, 3, 5 & 8 will be allowed to be imported under OGL, subject to the conditions laid down. Similar general provisions have been made in footnote (1) at the end of Appendix 6 List 8. However, the said general provisions cannot curtail the scope and ambit of serial No. 565 (15) of Appendix 6 List 8 Part I which specifically and by description allows importation under (O.G.L. of all printed circuit boards other than those covered by Appendix 3 part A. The said interpretation sought to be given by the respondent would make the words "other than those in Appendix 3 Part A" in the said Serial No. 565(15) redundant and meaningless. If the interpretation given by the respondent is correct, then all goods covered by Appendices 2, 3, 5 & 8 automatically got excluded from the scope and ambit of O.G.L. under Appendix 6. In that event there was or could be absolutely no necessity whatsoever to mention specifically "other than those in Appendix 6 List 8 Part I. It is well settled that an interpretation which makes the expressions used in the relevant provisions meaningless or redundant should not be given.
7. Admittedly printed circuit boards are broadly of two types - (a) plain or unpopulated printed circuit boards; and (b) populated printed circuit boards. This fact has been also admitted in the written submissions on behalf of the respondent. The interpretation sought to be given on behalf of the respondent would make the entire entry 565(15) of Appendix 6 List 8 Part I totally meaningless and without any effect. If the interpretation sought to be given by the respondent is accepted, it would mean that populated printed circuit boards are taken out and excluded from the said Serial No. 565(15) by reason of Serial No. 113 of Appendix 2 Part B. The plain or unpopulated printed circuit boards get excluded from the said Serial No. 565(15) by reason of Serial No. 607 (18) of Appendix 3 Part A. Thus in effect both plain printed circuit boards and populated printed circuit boards get excluded from the scope and ambit of Serial No. 565(15) of Appendix 6 List 8 Part I. In that event no other printed circuit board is left which may be imported under the said Serial No. 565(15). Obviously, such an interpretation, which makes the said Serial No. 565(15) totally meaningless cannot be given.
8. Reliance on behalf of the respondent has also been placed on paragraph 21 (c) of the Import Policy. This reliance however is totally misconceived. The said paragraph 21 (c) provides inter alia that "an item with a specific description in Appendix 2 Part B or 3 Part A will prevail over an Item with a generic description in any of these appendices". The expression "these appendices" in the said paragraph 21(c) would obviously mean the Appendix 2 Part B and Appendix 2 Part A referred to and mentioned in the earlier part of the said paragraph 21(c). Thus by applying the said rule of interpretation laid down in paragraph 21(c), there is or can be no question of Appendix 2 part B prevailing over the entries in Appendix 6 List 8 part I. In the brief notes of sub- missions the learned SDR has incorrectly mentioned the expression "the Appendices". While referring to paragraph 21(c) whereas in fact the expression used in the said paragraph is "these Appendices."
9. Paragraph 21(f) of the Import Policy would make it absolutely clear that the said populated printed circuit boards which are not covered by Appendix 3 part A could be legally imported under OGL under Serial No. 565(15) of Appendix 6 List 8 Part I. The said paragraph 21(f) provides that "any item in Appendices 2, 3, 5 & 8 with a specific or generic description, will preclude the eligibility to its import under OGL, except where the policy allows this clearly". It would be clear from the said paragraph 21(f) that even if an item is covered by Appendices 2, 3, 5 & 8 and even if such a coverage is by a specific or generic description, the importation of such item under OGL may still then be made if the policy allows this clearly. In the instant case, the said principle of interpretation laid down in paragraph 21(f) is clearly applicable. Importation of the said printed circuit boards (which are admittedly not covered by Appendix 3 Part A) has been clearly and specifically allowed under Serial No. 565(15) of Appendix 6 List 8 Part I. Thus even if the said loaded printed circuit boards are covered by Appendix 2, the importation thereof under OGL under Serial No. 565(15) of Appendix 6 List 8 Part I is clearly lawful and valid. The said paragraph 21 lays down the principles to be applied to the interse interpretation of the entries in the various appendices as well as imports under OGL. Thus if there is any confusion due to over-lapping of the various entries, it has to be sorted out in the light of the principles contained in paragraph 21. Applying the said principles laid down in paragraph 21(f) the said importation made by the appellant under OGL was and is fully legal, proper or valid.
10. It has been stated by the learned SDR that though there may be some confusion regarding the scope of entry at Sl. No. 565(15) of List 8 of Appendix 6, vis-a-vis Sl. No. 607(18) of Appendix 3-A it is for the licencing authority to clarify the position. But as far as the appellant is concerned it imported the said goods under OGL as it was clearly and specifically permitted under Serial No. 565(15) of Appendix 6 List 8 Part I. Even otherwise if due to overlapping of different entries there is any scope for any confusion the principle is now well settled that the interpretation favourable to the subject should be given. In view of the above reasonings as per Point No. 1,1 hold that the "printed circuit boards" which are the subject matter in these two appeals are fully covered by Serial No. 565(15) of Appendix 6 List 8 Part I and are not excluded by Serial No. 113 of Appendix 2 Part B. Point No. 2:
In view of the finding arrived at by me with respect to point No. 1, 1 hold that the confiscation of the goods in question involved in the two appeals are not justified and is not in accordance with law.
11. In the result, the appeals are accepted and the appellants be given the consequential reliefs thereon.