Custom, Excise & Service Tax Tribunal
Pradeep Shanti Prasad Jain vs Commissioner Of Customs (Acc & Import) on 15 December, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/829/06 Mum
(Arising out of Order-in-Original No. S/10-1597/90 ACC dated 23.08.1990 passed by the Commissioner of Customs, Air Cargo, Mumbai).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Pradeep Shanti Prasad Jain
:
Appellant
Versus
Commissioner of Customs (ACC & Import)
Mumbai
Respondent
Appearance Shri Vishal Agarwal, C.A for Appellant Shri V.K. Singh, SDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 09.12.10 Date of Decision : 15.12.10 ORDER NO.
This appeal is directed against the order of confiscation of the goods in question with an option to redeem the same on payment of fine of Rs.2 lakhs and a penalty of Rs.50,000/- also imposed on the ground that the imported goods were the consumer goods and were not covered under the REP licences produced by the appellant.
2. The facts of the case are that the appellant had imported TV Broadcast & Studio Equipment and sought their clearance against REP licences bearing Nos. 3361987 and 3245612 as per para 177(2) of AM 1988-91 Policy. The said clearance was refused by the Customs authorities on the ground that the said goods are consumer goods covered under Appendix II(B)-Entry No. 175 of AM 91-93 Policy. The appellant preferred a Writ Petition against the same and the Honble High Court of Bombay by an interim order permitted the appellant to clear the goods against ITC bond and also granted liberty to the department to adjudicate the dispute accordingly. Thereafter the impugned order was passed which was challenged by the appellant before the Honble High Court of Bombay by way of Writ Petition which was disposed of by the Honble High Court directing the appellant to challenge the same before this Tribunal. Accordingly, the same was listed today for final disposal.
3. Shri Vishal Agarwal, the learned Advocate appearing for the appellant submitted that -
Similar goods had been imported by the appellant against several other airway bills as also by several other importers, all of whom had also filed Writ Petitions challenging the action of the Revenue in not permitting clearance against the REP licences produced by them. It was submitted that the Honble Bombay High Court vide order dated 8th March, 2010 disposed of the said Writ Petitions including that of the appellant for other imports by holding that:
(i) Since REP licences were issued in terms of the 1988-91 policy, the import in question would be governed by the said policy as has been held by the Honble Supreme Court in the case of Jain Exports Pvt Ltd vs UOI 1988 3SCC 579.
(ii) The TV broadcast & studio equipment imported by the petitioner were capital goods covered by para 177 (2) of AM 1988-91. The contention of the Revenue that the said goods were covered under Entry No.148 of Appendix 2 (Part B) of AM 1988-91 which covers all electrical equipment/ systems howsoever described (including consumer and professional type) was not correct. It was further held that even assuming that the goods were under Entry 148, the import of the same was not banned and the same would not cease to be capital goods and the import of which is permitted against REP licence in terms of para 177(2) of AM 1988-91.
4. On the other hand the learned SDR submitted that the decision of the Honble High Court is not relevant to this case as the Honble High Court has overlooked the transitional provisions appearing in para 214(6) of the Policy of 1990-93 as per which REP licence shall not be valid for import of permissible on-OGL capital goods, tools & instruments, importable in terms of para 177(2) of 1988-91 policy which have been shifted to Appendices I Part A, II-Part B or VIII of the policy.
5. In reply to the contention of the learned SDR the learned Advocate further submitted that the issue is squarely covered by the decision of the Honble High Court as herein below:-
the issue in dispute was squarely covered by the decision of the Honble High Court and that even if the transitional provisions contained in para 214(6) were applied, what was excluded by virtue of the same was non-OGL capital goods importable in terms of para 177 (2) of 1988-91 policy which had been shifted to Appendix I Part A, II-Part B or 8 of the policy 1993. It was not the case of the Revenue that the goods in question were covered by Appendix I-Part A or 8 of the policy. According to the Revenue, the goods were covered by Sr.No.175, Appendix II(B), i.e. II-Part B of the policy. As stated above, Sr.No.175, Appendix II(B) covers All electronic equipment/systems, howsoever described (including consumer or professional type) excluding those specifically allowed under OGL, in this policy or elsewhere specified. This provision of 1990-93 policy is pari materia with Sr.No.148 of Appendix II (B) of the 1988-91 policy which reads All electronic equipment/systems howsoever described (including consumer or professional type), excluding those specifically allowed under OGL in this policy or specified elsewhere. The Honble High Court has in its judgment in para 10 clearly held that the TV broadcast & studio equipments are not covered under Sr.No.148 of Appendix II (B). Accordingly, even if the transitional provisions were applied, the goods imported by the appellant were covered in Appendix II-Part B of the policy as alleged and hence were eligible to benefit of REP licences even in terms of the transitional provisions.
6. Heard and considered.
7. On careful examination of the submissions made by both the sides, I find that the Honble High Court of Bombay has considered the import of the items in question in Writ Petition No. 1481 of 1992 Order dated 8th March 2010 in detail wherein the Honble High Court has observed as under:-
4. Mr. Jetly learned counsel appearing for the Revenue submitted that the importing question would be governed by the import and export policy applicable for the year AM 91-94 as the import had taken place in June 1992, i.e. after expiry of AM 1988-91. He submitted that though REP licence was issued when AM 1988-91 was in force, since the import had taken place in June 1992 the REP licence as well as import made under the REP licence would be governed by the import and export policy in force on the actual date of import and not on the date when the REP licence was issued. Per Contra, Mr. Rana submitted that import would be governed by import export policy AM 1988-91. In support of his submission he referred to and relied upon by a decision of the Supreme Court in Jain Exports (P) Ltd vs Union of India 1988 3 SCC 579. In that case, two consignments of natural coconut oil were imported from Srilanka and arrived at port of destination on 22nd September 1981 and 10th September 1982 respectively. The import was effected in pursuance of a licence which was issued in the year 1980-81 but the goods were actually imported after the policy had expires and new policy had come into force. In paragraph no.2 of the decision, Supreme Court posed the questions which had arise for its consideration. The question no.1 was (1) The import policy of which year would be applicable to the present case- the period during which the licences were issued or the time when the import actually took place.
In paragraph no.3 of the decision, the Supreme Court held that the High Court had come to the correct conclusion to the terms of import policy of 1980-81 (i.e. period during which the licence was issued) would apply. In view of the decision of the Supreme Court, we have no doubt that the import in question which was effected in pursuance of a REP licence dated 13th December 1990, would be governed by the import export policy AM 1988-91.
10. Mr.Jetly, learned counsel for the applicant submitted that the equipment in question would fall under Entry No.148 of Appendix II (Part B) of AM 1988-91 which covers all electrical equipments, systems, however described allowed under OGL or specified elsewhere. In our view, the TV broadcast & studio equipment does not fall under Entry No.148 of paragraph Appendix II, it is not an equipment import of which is banned. It would not cease to be capital goods the import of which under REP licence was permitted under para 177(2) of AM 1988-91. Consequently, customs authorities erred in refusing to allow the import which ought to have been permitted under the REP licence.
8. In view of the above findings of the Honble High Court of Bombay, I find that the items imported are the capital goods as covered under REP licence which was permitted to import under para 177(2) of AM 1988-91. Hence the item imported are the capital goods which are covered by the REP licence (on the basis of which the appellant imported) the impugned goods in question. Hence, as held by the Honble High Court of Bombay, these items are not banned items and can be imported through under REP licence produced by the appellant. In view of the above discussions, the impugned goods are not liable for confiscation, hence redemption fine and penalties imposed on the appellants in the impugned order are not warranted. With these observations, the impugned order confiscating the goods in question and imposing redemption fine and penalty is set aside. The appeal is allowed with consequential relief.
(Pronounced in Court on 15.12.10) (Ashok Jindal) Member (Judicial) nsk 6