Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs, Mumbai vs M/S. Servitor Marketing & Exports Pvt. ... on 9 March, 2001
Equivalent citations: 2001(138)ELT933(TRI-MUMBAI)
ORDER
1. This appeal from Revenue was argued by Shri B.K. Choubey. The respondent were not present.
2. The respondent imported lubricants claiming importability under OGL and stating that the items did not fall under the negative list. The Assistant Commissioner 2.75 kgs to 20 kgs and therefore held that they were consumer goods in terms of Para 7(12) of the Exim Policy 1992-97. He held import to be unauthorised and confiscated the goods prescribing fine and penalty. The importers filed an appeal. The Commissioner (Appeals) held that the goods did not directly satisfy human needs. These goods were first to be used in the machinery to enable the machinery to produce goods for human consumption. According to him the lubricants by themselves were not consumer goods. He allowed the appeal. Hence the present appeal.
3. Shri Choubey very strong relies on Tribunal judgement in Southern General Trading Company Ltd. Vs. CCE 1995 (77) ELT 592. In this judgement the Tribunal held that such oil and lubricants in packing of 1, 2 and 8 litres used in motor vehicles were consumer goods. I have examined this judgement and find that it does not cover the situation. A person who owns a motor vehicle can perhaps use a can of lubricating oil containing one kilogram. He is a direct consumer. But where the oil is not motor oil but is lubricating oil for heavy machinery then the judgement would not apply. I also find that packing in the present case is in substantially larger volumes than what was before the Tribunal. I find no reason to set aside the belief of the Commissioner (Appeals) that the goods were not consumer goods.
4. In the appeal memorandum a statement is also made that such goods required specific licence having been specifically enumerated at serial No. 55 of Appendix XXXV of the said policy. Mr. Choubey spent quite sometime in putting this across. I observe that this issue was not forming part of the deliberations in either proceeding at lower levels. The Revenue cannot be permitted to make a fresh ground at this second appellate stage.
5. I find that the impugned order sustains. The appeal from Revenue is dismissed.