Customs, Excise and Gold Tribunal - Delhi
Monica Electronics (P) Ltd. vs Collector Of Customs on 13 July, 1988
Equivalent citations: 1988(18)ECR622(TRI.-DELHI), 1988(38)ELT642(TRI-DEL)
ORDER D.C. Mandal, Member (T)
1. By this appeal the appellants have challenged the ITC Classification ordered by the Additional Collector of Customs, Import Cargo, New Delhi in respect of 'Transistors 2SD 866B" which are components of colour TV. The Additional Collector has observed that the invoice and packing specification indicate the imported Transistors as "2 SD 866B - Transistor Collector to Emitter Voltage above 100 volts", but the verification of the catalogue indicated that the Vceo is 100 volts only. He has observed that only the Transistor of Vceo above 100 volts falls under OGL As the Vceo of the imported transistors was 100 volts only, these are not covered by OGL He has further observed that there are two parameters in respect of the Transistors, namely, Vceo and Vces. Vceo represents the sustaining point whereas the Vces represents the break down point. According to him the policy is only with reference to Vceo and in the present case it is clear from the invoice that the Vceo was about 100 volts and therefore, the Transistors did not fall under Appendix 6 of Import Policy as claimed by the importer. He has, therefore, held that the goods required an import licence under Appendix 3, Part A, Sri. No. 607(1) of the ITC Policy AM 1985-88. In the absence of import licence he has confiscated the goods under Section 111 (d) and 111 (m) of the Customs Act with a fine in lieu of confiscation of Rs. 25,000/-. He has also imposed a personal penalty of Rs. 500/- on the appellants under Section 112 of the Customs Act.
2. I have heard Shri D.N. Mehta, learned advocate for the appellants. He has argued that Appendix 6, List 8, Part I of the ITC Policy 1985-88 (Vol. 1) contains a list of raw materials, components and consumables allowed for import under OGL Serial No. 565 of this Appendix allows import of Electronic Items (other than those in Appendix 3, Part A) under OGL. Sub-serial No. (65) of Serial No. 565 allows import of "Silicon Transistors with Collector to emitter voltage above 100 volts ...".
Shri Mehta has argued that the Transistors imported by the appellants are above 100 volts. He has argued that the invoice of the imported goods indicated that the Collector to emitter voltage was above 100 volts, and the catalogue also clearly states that the Vces is 200 volts and Vceo is 100 volts. He has further argued that the Import Policy did not lay down how the Collector to emitter voltage was to be reckoned, i.e., whether Vceo or Vces. He has stated that the Additional Collector's finding that the Import policy Is with reference to Vceo and not Vces is not correct. In the Impugned order the Additional Collector has himself observed that there are two parameters in respect of Transistors, namely, Vceo and Vces. Vceo represents the sustaining point whereas the Vces represents the breakdown point The teamed advocate has then drawn my attention to the photo-copy of letter No. 8(28)/87-Camp I dated 16.10.1987 from the Joint Director, Department of Electronics. New Delhi to the Assistant Collector of Customs, CWC Buid Nr, New Delhi. In paragraph 2 of the said letter the Joint Director has stated that there are a number of parameters depending on circuit and vceo represents the worst case parameter. The Joint Director, in view of the ambiguity in the description in the Import Policy, recommended that in the instant case the importers' declaration should not be treated as mis-declaration and they should be given the benefit of doubt. Shri Mehta has argued that the Additional Collector has gone by Vceo parameter which is stated by the Joint Director, Department of Electronics to be worst case parameter. He has argued that there was no mis-declaration on the part of the appellants. The goods were correctly described in the Ml of entry, Invoice and in the packing list. The expert opinion given by the Department of Electronics should not have been ignored by the Additional Collector. In support of this argument regarding expert opinion Shri mehta has relied on the decisions reported in 1988 (33) ELT373 (Tribunal) in the case of Polestar Electronics Pvt Ltd. v. Collector of Customs (Airport) and 1988 (15) ECR 298 (Cegat) In the case of Life Line Systems Private Ltd. v. Collector of Customs, New Delhi. Shri Mehta has further argued that benefit of doubt should have been given to the importers and for this argument he has relied on decisions reported in 1980 ELT 717 (Bombay) in the case of National Machinery Manufacturers Limited v. Union of India and Ors., 1986 (24) ELT 157 in the case of Modi Cloth Mills, Modinagar v. Collector of Central Excise, Meerut and 1988 (14) ECR 45 (Cegat) in the case of Dolphin Laboratories, Calcutta v. Collector of Customs, Calcutta. The teamed Advocate has further stated that the redemption fine imposed by the Additional Collector is excessive. He relied on the judgment reported in 1988 (33) ELT 199. Arguing for the respondent, Smt Chaturvedi has drawn my attention to the catalogue, show cause notice, invoice and the packing list
3. I have considered the records of the case and the arguments of the learned advocate and learned S.D.R. Appendix 3, Part A, Serial No. 607(1) of Import Policy 1985-88 (Volume I) covers, inter alia, Transistors as an electronic item, which means that for its import a licence is necessary. On the other hand, according to entry at Serial No. 565(65) hi Appendix 6, List 8, Part I of the Import Policy "Silicon Transistors with Collector to emitter voltage above 100 vdts" can be imported under OGL It is not disputed that the appellants imported silicon transistors. The dispute is about the voltage. The Additional Collector has held that the goods imported are Vceo 100 volts and that the Import Policy is with reference to Vceo only. A careful reading of entry No. 565(65) (Supra) shows that the finding of the Additional Collector that the policy is only with reference to Vceo is not correct The policy does not specify whether the parameter should be Vceo or Vces. In the impugned order, he himself has held that there are two parameters in respect of Transistors, namely, Vceo and Vces. The photocopy of the catalogue submitted by the appellants shows that the maximum ratings are Vces 200 volts and Vceo 100 volts. In view of these two parameters it cannot be categorically stated that the imported transistors are not with Collector to emitter voltage above 100 volts. In the absence of any definite parameter as to whether it should be Vceo or Vces in the Import Policy, Serial No. 565 (65) of the Appendix 6, List 8. Part I, the benefit of doubt should be given in favour of the appellants. Accordingly, I give benefit of doubt to the appellants, and set aside the impugned order of confiscation and redemption fine and allow the appeal filed by the appellants.