Customs, Excise and Gold Tribunal - Calcutta
Tata Iron And Steel Co. Ltd. vs Collector Of Customs on 28 December, 1984
Equivalent citations: 1985(5)ECR1737(TRI.-KOLKATA), 1985(22)ELT889(TRI-KOLKATA)
ORDER Harish Chander, Member (J)
1. The Tata Iron and Steel Co. Ltd., 43, Chowringhee Road, Calcutta-700071 has filed a reference application under Section 130 (1) of the Customs Act, 1962 and has required this Tribunal to refer certain questions said to be the questions of law and arising out of order No. 262/Cal./84-2003, dated 14th August, 1984 arising out of Misc. Application No. 9/84 to the Hon'ble High Court.
2. In asmuchas in my opinion, no question of law does arise within the aforesaid order of the Tribunal, I decline to draw statement of the case and proceed to state the reasons therefor.
3. Briefly the facts of the case are, that the appellant imported under Bill of Entry DI/451, dated 20th May, 1982, one complete gear Profile/Helix Testing Machine, with all standard accessories, under Open General Licence 2/81, Appendix 2, SI. No. 2(a) of I.T.C. Policy 1981-82 read with Appendix 10. A few of the accessories, valued at Rs. 3,46,427/-, were held to be extra accessories limited to 5% of the main equipment, namely Rs. 1,07,158/- on the total value of Rs. 21,43,16 hence there was excess import. After adjudication, the learned Collector had held that except for the Electronic Measuring Equipment valued at Rs. 2,70,324/-, which is a complete measuring instrument falling under Appendix 30 requiring a specific licence, the other goods would be regarded as essential accessories. The Electronic Measuring Equipment was confiscated under Section 111 (d) for contravention of Section 11 of the Customs Act, 1962 read with Section 3 of the Imports and Exports (Control) Act, 1947 and Ministry of Commerce and Industry's order No. 17/55, dated 7th December, 1955. However, the goods were permitted to be cleared on payment of a fine of Rs. 10,000/- in lieu of confiscation.
Being aggrieved from the aforesaid order, the applicant had filed an appeal before the Tribunal and the said appeal was rejected by the Tribunal vide Order No. 23/Cal/83, dated 18th March, 1983 vide appeal No. CD. (T) CAL-107/82. The appellant had accepted the said order of the Tribunal and the appellant had filed a Miscellaneous Application on the 4th May, 1984. In the said Miscellaneous Application, the appellant had contended that there was no contravention at all of any provisions of the Import Control or Customs Act, no penalty or fine is at all warranted. In the said Miscellaneous petition (review petition), the applicant had requested for the review of order. Para No. 6 of the Miscellaneous Application is reproduced as under :
"6. The petitioner submits that in view of the above, there being no contravention at all of any provisions of the Import Control or Customs Act, no penalty or fine is at all warranted."
The said miscellaneous application was rejected by the Tribunal vide Order No. 262/Cal/84-2003, dated 14th August, 1984 with the observation that there is no mistake apparent from record and there are no provisions under the Act to file a Review Application to the Tribunal.
Now, the applicant has come for reference to the High Court being aggrieved from Order No. 262/Cal/84-2003 dated 14th August, 1984. In the reference application, the applicant has proposed the following questions of law :
"1. Whether the observation of the Tribunal at the outset, that the application in respect of which the impugned order was passed, was not an application for rectification but for review and all other remarks including the one relating to the limited scope of Section 129B made in that connection, be sustainable in law.
2. Whether the Customs reliance on Serial No. 4 of Appendix 10, which the Tribunal simply confirmed on appeal without looking into its applicability or otherwise to the present case of the petitioner, is not a mistake apparent which needs rectification for the simple reason that serial No. 4 of Appendix 10 only relates to replacement of spares for existing machines which are already in operation at the premises of the Industrial Actual User, and, inasmuch as the Appellant's contention that the subject import was an integral accessory of a new machine with which it was imported and not by way of replacement.
3. Whether the reasoning of the Customs, simply endorsed by the Tribunal without looking into its merits, that the subject unit is not a standard accessory to the main equipment i.e. Gear Testor, is sustainable in law, when the testing unit is so much an integral part of the equipment, that, without the unit, the GEAR TESTOR cannot carry out the 7 categories of tests for which it was designed and imported for use, more so, when a pamphlet to prove this point was produced before the Appellate Authorities. The same was not considered purely on technical grounds.
4. Whether the Appellate Authorities are justified in ignoring the valid contention of the Appellant even assuming that the subject Testing unit is a complete equipment of itself, it is still very much covered under OGI vide Appendix 2, item 2, sub-item 4 (page 55) of ITC Policy 1981-82. Is the action on the part of the Appellate Authorities in not considering this point as well as a leaflet produced in support of this, sustainable in law ?
5. Is the Appellant not justified in seeking relief from the Appellate Authority by pointing out the mistakes apparent and wrong interpretation of the Import Trade Policy Regulations and Customs Act and is the Reviewing Authority not competent to examine in detail the various contentions of the parties, facts of the case, the true object and significance of the statutory provisions and then pass a speaking order as to whether on the facts and circumstances of the case the appeal merits a favourable consideration.
6. Whether in the light of the Supreme Court's decision in the case of Hindustan Steel, Cement Marketing Company and various other cases, is the levy of line imposed by the Customs justified, warranted and sustainable in law when there is not even a mere technical and venial breach of the provisions of law but the offence charged being merely on a wrong interpretation of the provisions of law and misconception of facts.
4. At the outset of the hearing, Shri A.K. Chatterjee, the learned Junior Departmental Representative has raised a preliminary objection that no reference application lies from an order passed under Sub-Secton (2) of Section 129B of the Customs Act, 1962. He has pleaded that the applicant has come in a reference application against the order passed under Sub-Secton (2) of Section 129B where a reference application lies only under Sub- Secton (1) of Section 129B of the Customs Act, 1962.
5. In reply, Shri T. Banerjee, the learned advocate has pleaded that a reference application lies to the Tribunal.
6. After hearing both the sides, on the point of the maintainability of the reference application I hold that a reference application lies against any order passed under Section 129B of the Customs Act, 1962. Sub-Secton (1) of Section 130 of the Customs Act, 1962 is reproduced as under :
"130. (1) The Collector of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 129B (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in such form as may be specified by rules made in this behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, Subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court :
Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days."
A simple perusal of said Sub-Secton (1) of Section 130 of the Customs Act, 1962 shows that any order passed under Section 129B of the Customs Act, 1962 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of Customs or to the value of goods for purposes of assessment), reference application lies to the High Court. In the instant case, the applicant has come with a request to refer his case to the High Court in respect of the order passed by the Tribunal under Sub-Section (2) of Section 129B of the Customs Act, 1962. Accordingly, 1 hold that a reference application does lie to the High Court against any order passed under Section 129B of the Customs Act, 1962.
7. On merits, Shri T. Banerjee, the learned advocate has reiterated the facts and has pleaded that questions of law do arise and has requested this Court to refer the proposed questions of law to the High Court.
8. In reply, Shri A.K. Chatterjee, the learned J.D.R. has pleaded that no question of law does arise and has pleaded for the rejection of the reference application,
9. In reply, Shri T. Banerjee, the learned advocate has again submitted that the questions of law do arise and prayed for referring to the High Court.
10. After having considered the submissions of both the sides. I have come to the conclusion that no question of law does arise. The Tribunal, while disposing of the miscellaneous application, had considered all the facts and circumstances and law and I hold that no question of law is involved and the rinding of the Tribunal is the finding of fact.
11. In the result, the reference application is rejected.