Customs, Excise and Gold Tribunal - Calcutta
Sewing Machineries & Spares vs Commissioner Of Customs (Port), ... on 17 September, 2001
Equivalent citations: 2002(139)ELT691(TRI-KOLKATA)
JUDGMENT
Archana Wadhwa
1. Vide the impugned order the Commissioner of Customs(Port),Calcutta has confiscated 507 places of old and used industrial swing machines valued at Rs.20,36,728.65 imported by the appellant with an option to him to redeem the same on payment of redemption fine of Rs.4,00,00/- (rupees four lakh). Further a personal penalty of Rs.50,000/- (rupees fifty thousand) has bene imposed upon the appellant. The appellant has not appeared inspite of today's notice of hearing having been sent well in advance. I also note from the case records that on the lat occasions also nobody caused appearance on behalf of the appellant, when the matter was adjourned to 27.8.2001. Accordingly I have heard Shri A.K.Chattopadhyay, ld.JDR appearing for the Revenue and have gone through the impugned order.
2. The appellants had imported old and used industrial sewing machines under the provisions of Import Export Policy. The appellant is a trader of industrial sewing machines and is not actual user. The only dispute involved in the present appel is as to whether the old and used machines can be imported by a trader or the same can be imported only by an actual user. The appellants' contention is that the said machines are importable against surrender of Special Import Licence, because nowhere in the policy it ha been mentioned that only actual users are eligible for import of second hand capital goods. It was also their contention that they had been importing such goods for the last number of years. In terms of para 5.4 of the hand book of procedure(Volume-1), import of second hand capital goods which are not more than 10 years old shall be allowed on surrender of SIL equivalent to five times the CIF of imported capital goods and such second hand capital good shall not be transferred, sold or otherwise disposed of within a period of two years from the date of import, except with the prior permission of the DGFT. The appellant agreed to give an undertaking that they will not transfer or sell the good in next two years.
3. On the other hand the Commissioner has observed that there is no express condition in the policy that such second hand machine could be imported by actual under, but such a condition is implied in the para 5.4 of the hand-book of procedure. He has further referred to 4.13 of the policy which is to the effect that in cases of any question or any doubt in respect of interpretation of any provisions contained in the said policy, the DGFT's decision shall be final and binding. Accordingly he has referred to the clarification given by Deputy Director, DGFT, vide its letter F.No. 01/93/080/522 & 662/AMOI/681 dt.18.8.2000. The said clarification is to the effect that import can only be effected by actual users. By observing so he has confiscated the machines with an option to the appellant to redeem the same and has also imposed personal penalty.
4. The relevant paragraph of the order of the Commissioner is reproduced below for better appreciation:-
"8. In para 5.4 of the HandBook of Procedure it is clearly mentioned that second hand capital goods shall not be transferred, sold or otherwise disposed of within a period of two years except with the prior permission of the Director General of Foreign Trade. I find that the department was correct to hold that the Actual User Condition is implied in the said para. This is further substantiated by the fact that the DGFI has categorically stated that only "Actual Users" are allowed to import second hand capital goods against surrender of SIL. In terms of para 4.13 of the present Export & Import Policy, in cases of any question or doubt in respect of the interpretation of any provisions contained in the said policy, the DGFT's decision shall be final and binding. I therefore hold that the second hand machines in the subject case are not allowed to be imported by the present importer who is not an Actual User. The 507 pcs. second hand machines are, therefore, liable for confiscation u/s 111(d) of the Customs Act, 1962. The importer is also liable to penalty u/s 112(a) ibid for rendering the goods liable to confiscation. However a lenient view of the matter has to be taken as the offence was not deliberate but caused due to misunderstanding of the Exim Policy in respect of "Actual User" condition relating to import of second hand machinery.
5. From the above paragraph it is seen that the Commissioner has only gone by the advice of the DGFT. However, it is seen that there is no dispute that para 5.4 of the Handbook of Procedure allows import of the capital goods subject to the condition that the same shall not be disposed of, transferred or sold with a period of two year from the date of import except with the prior permission of the DGFT. There is no condition in the said para that the import can only be made by actual users. The Commissioner has also admitted the above fact, but has introduced the said condition by observing that the same is implied. It is well settled of interpretation of fiscal status that when the language is clear and unambiguous, the intention of the legislature becomes irrelevant and no foreign words can be introduced based upon such intention. Inasmuch as the policy nowhere specifies that such capital good can only be imported by actual users, introduction of such a condition in the policy would not be proper. It is further seen that the capital goods os imported can be disposed of or sold with the permission of the DGFT. This also negates the stand of the Revenue that the intention of the policy is to allow imports to actual users and not to traders. On the contrary it shows that traders, after importation can approach DGFT for sale or disposal of the goods. As such I find that the terms of the policy being very clear there is no doubt about the same. The impugned order is accordingly set aide the appeal is allowed with consequential relief to appellants.
(Pronounced)