Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of Customs vs Goel Enterprises on 19 November, 2004
Equivalent citations: 2005(179)ELT509(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. The Revenue is aggrieved with the Order-in-Original No. 10/2000, dated 30-11-2001 by which the demand raised by the Department has been dropped. The appellants had imported Cast Coated Paper/Paper Boards in terms of the licence granted to them by the DGFT. The licences were issued to M/s. ITC Bhadrachalam Paper Boards Ltd. and later transferred in the name of the Respondents. The licence granted was with regard to import of only base paper and hence the Department was of the view that the assessee cannot import cast coaled paper/paper boards. However, the issue was referred to the Licensing Authority, namely Joint Director General of Foreign Trade, Hyderabad to clarify as to whether the cast coated paper/paper boards can be imported in spite of the said licences were granted to the importer. The Commissioner in the light of the several judgments on this point had dropped the proceedings and hence this appeal.
2. We have heard Shri A. Jayachandran, learned JDR appearing for the Revenue and Shri B. V. Kumar, learned Counsel appearing for the Respondents in the matter. Both the sides re-iterated their submissions.
3. Ld. JDR submits that the item cannot be considered to be falling in Sl. No. K. 14 of the licence involved and relics on the judgment rendered by the Tribunal in case of Kohinoor Impex Pvt. Ltd. v. Collector, reported in 1999 (113) E.L.T. 968 (Tribunal) which has been confirmed by the Apex Court [2001 (131) E.L.T. A86(S.C.)].
4. Ld. Counsel distinguishes the judgment referred to by learned JDR and submits that the Licensing Authority has clarified the position and the said clarification is binding on the Customs Authority as held by the Hon'ble Apex Court, High Courts and Larger Bench of the Tribunal. He relies on the following rulings -
(i) Goodluck Industries v. Commissioner of Customs, Calcutta - 1999 (108) E.L.T. 818 (Tribunal) which has further relied on a large number of Apex Court judgments and High Court judgments.
(ii) Jayant R. Patel v. Commissioner of Customs, Hyderabad - 1997 (89) E.L.T. 164 (Tri.) which is also based on earlier judgments of the High Courts and the Tribunal.
(iii) Lokash Chemical Works v. M.S. Mehta, Collector of Customs (Preventive) Bombay and Ors. -1981 (8) E.L.T. 235 (Bom.)
(iv) Commissioner of Customs, Mumbai v. Matriaco (I) Ltd. - 1999 (114) E.L.T. 99 (Tribunal).
5. On a careful consideration of the submissions made by both the sides, we find that the judgment cited by the learned JDR is not on the point pertaining to the clarification given by the licensing authority. In the present case, the matter had been referred to the licensing authority and the licensing authority has clearly clarified that the imported item falls within the license. The finding recorded by the Commissioner in Paragraphs 25 and 26 of the impugned order is reproduced below -
"25. From the case records I find that a specific reference was also made to the licensing authority (Joint Director General of Foreign Trade, Hyderabad) on whether cast coated paper in any form could be imported under the advance license in question. On reply Joint Director General of Foreign Trade, Hyderabad reiterated that Customs will have to allow clearance of relevant paper for resultant product : cast coated paper/cast coated paper board; and that the omission of the word jumbo rolls in the licence would not alter the raw material. In other words the licensing authority did not state that import of cast coated paper is not permissible under the said advance licence.
26. The description of the imported goods has been mentioned as cast quoted paper/paper board in the invoices, bill of lading, bill of entry and in the declaration filed along with the bill of entry. In addition to the above said description on the words "relevant paper" has also been written in two out of the 4 bills of entry below the main description namely cast quoted paper/board. I therefore cannot imagine how the charge of misdeclaration as relevant paper could be sustained in these circumstances."
We notice that the above finding has been recorded by the Commissioner in the light of the several judgments noted in Para 24 of the order. We have gone through the cited judgments relied on by learned Counsel and find that the issue is covered in favour of the importer. Once the licensing authority has clarified the issue then the said clarification is binding on the Customs Authority as held by the afore stated judgments. Following the ratio of the same, we do not find any merit in the appeal and the same is rejected.