Customs, Excise and Gold Tribunal - Delhi
Neesha Plast Industries vs Commissioner Of Customs on 10 March, 2000
Equivalent citations: 2000(118)ELT255(TRI-DEL)
ORDER Jyoti Balasundaram, Member (J)
1. The following question has been referred for decision by the Larger Bench :
"Whether in the facts and circumstances of the case, the REP licence produced by the appellants should be held as valid to cover import of Sodium Saccharine as held by this Bench, in the case of Ashish & Co. v. Commissioner of Customs, Mumbai, in his Order No. 209/96-WRB, dated 29-1-1996. If the licence is held to be not valid to cover the import, whether fine and penalty needs to be modified ?
2. The brief facts of the case are that the appellants herein imported a consignment of Sodium Saccharine for which they filed a bill of entry in February, 1996 claiming clearance in terms of REP licence against the description of the goods 'Electroplating Salts and Brightener'. The Customs authorities took the view that Sodium Saccharine is mentioned at SI. No. 83 Appx. 2 Part B of the Import Policy 1985-88 under the list of restricted items, and that Paragraph 5 of Appx. 17 of the Policy lays down that import of items appearing in Appx. 2 Part B will not be allowed, except if it is specifically described for import under the relevant Column in the Policy for such licence. The licence produced by the appellants did not have any specific endorsement for Sodium Saccharine. Therefore, the Department was of the view that Sodium Saccharine cannot be imported against the generic description in the licence of 'Electroplating Salts and Brightener'.
3. Proceedings were initiated against the appellants by issue of show cause notice which was adjudicated by the Assistant Commissioner vide order, dated 7th March, 1988 who held that the REP licence produced by the appellants was not valid for the import of Sodium Saccharine and hence confiscated the goods with option to redeem the same on payment of a fine of Rs. 2,53,000/- against each bill of entry and he also imposed a personal penalty of Rs. 65,000/- against each bill of entry. The order of the Assistant Commissioner was upheld by the Commissioner of Customs (Appeals); hence this appeal before us.
4. None appears for the appellants in spite of notice; hence we have heard the learned DR and perused the records.
5. There is no dispute that Sodium Saccharine finds place in Appx. 2 Part B of the Policy as a restricted item. Condition No. 5 of Appx. 17 to the Policy clearly stipulates that no import of item appearing in Appx. 2B shall be allowed against REP licence unless the item appearing in Appx. 2B is specifically described for import either under Col. 4 or 5 of Appx. 17. Sodium Saccharine has not been specifically mentioned in either Col. 4 or 5 of Appx. 17. Hence the contention that the item can be imported under REP licence. it is covered by generic description 'Electroplating Salts and Brightener' is not tenable. Although Sodium Saccharine is a Electroplating Salt, since it has not been mentioned specifically by name in Col. 4 or 5 of Appx. 17 of the Policy, import of this item under REP licence is not valid.
6. We note that in the decision of Ashish & Co. cited supra, the issue related to import of Sodium Saccharine against REP licence for the same policy period and the Tribunal held that the import was valid, following the decision of the Bombay High Court in the case of Harish Kumar & Co. v. Assistant Commissioner of Customs reported in 1989 (41) E.L.T. 59. However, we agree with the learned DR that the decision of the Bombay High Court related to a case of import against additional licence and not against REP licence and hence the Tribunal, in the case of Ashish & Co., has erroneously applied the Bombay High Court judgment to goods imported against REP licence.
7. We also agree with the learned DR that the decision of the Tribunal in the case of Bombay Pharma Products v. Collector of Customs reported in 1996 (87) E.L.T. 625 is distinguishable as it was based upon the construction of the entry 'seeds' in Appx. 17, as to whether it could cover all kinds of seeds. In that case, the Customs authorities had confiscated a consignment of poppy seeds as not covered by REP licence invoking the bar under Para 5 of Appx. 17 and held that poppy seeds are consumer goods falling under Appx. 2B and hence import was not permissible under REP lincence. The Tribunal took the view that although poppy seeds are consumer goods, they are 'seeds' covered by Appx. 17, entry G-2(1) of Col. 4(a) of Appx. 17 of the Policy. Therefore, all seeds, even if they are consumer goods, fall within the ambit of one of the exceptions to Condition No. 5 of Appx. 17, namely item specifically described for import under Col. 4 and therefore, the bar against import of seeds under REP licence by virtue of their being consumer goods, will not operate. The Tribunal held that the REP licence issued under 1985-88 Policy produced by the appellants was not valid for import of poppy seeds. This is not the situation in the present case.
8. We therefore, answer the issue referred to us as under : The REP licence produced by the appellants is not valid to cover import of Sodium Saccharine.
9. On the question of fine and penalty, we note that the Deputy Collector of Customs has imposed a redemption fine of Rs. 2,53,000/- against each bill of entry without any discussion on the margin of profit. He has imposed a personal penalty of Rs. 65,000/- against each bill of entry for the reason that the appellant has imported restricted items in spite of Public Notice having been issued against such import. Having regard to the totality of the facts and circumstances of the case and the fact that there is no finding on the margin of profit, we reduce the fine in each case to 100% of the value of consignment i.e. Rs. 1,68,754/- and the penalty in each case to Rs. 40,000/-.
10. The appeal is disposed of in the above terms.