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S.L. Peeran

1. This appeal arise from order-in-original No. 293/96 AP dated 12.9.96 by which the Commissioner has held that the import "V93 Hiko Trays" by the appellant was in contravention of Foreign Trade (Development and Regulation) Act, 1992 and the said goods requires licence as per para 156 of EXIM policy 1992-97 read with ITC (HS) Classification of Import and Export Items on the ground that the item is plastic trays and are in ready - to -use condition, having multiple use and can satisfy human needs, these plastic trays are classifiable under sub-heading 3926.90 of CTA. The appellant had imported and declared them for classification under chapter 84.36 as "other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders". They contend that the item did not require licence and it can be imported under OGL. The goods were valued at Rs. 11,42,011/- and as a consequence of the allegation the Commissioner confirmed the same by holding that the item require a licence as it was a consumer goods not permitted to import without licence, therefore, the order for confiscation of the goods. However, as it was being utilised by the appellant themselves he has taken a lenient view by imposing redemption fine of Rs. 2,80,000/- and penalty of Rs. 60,000/- under Section 112 (a) of Customs Act, 1962.

4. Ld. SDR submitted that the item is a consumer goods requiring licence and therefore it was confiscable and the Commissioner has taken a lenient view in imposing less fine and penalty and therefore there is no need to re-classify under chapter 84 and grant any relief in the matter.

5. On a careful consideration of the submission we notice on perusal of the impugned order, the Commissioner has examined the article as "plastic not elsewhere classified" falling under heading 3926.90 of ITC (HS) classification of Export & Import Item that the condition of the earlier declaration that the item to be restricted under the EXIM policy and it requires to be imported only on licence. The item is being used directly just like a bucket with a handle having pores for sprinkling water on plant and that the item is a consumer item. We notice that the Tribunal in the case of Hello Mineral Water Pvt. Ltd. v. CC, New Delhi as reported in 1998 (99) ELT 530 (T) upheld similar allegation when the importer imported mineral water cooler/container which was reid plastic (polycarbonate) square empty bottles for mineral water of capacity of six gallons to be in the nature of consumer durable and covered under consumer goods require specific licence for import under terms of para 22 of Chapter V of the EXIM policy 1992-97. The Tribunal also upheld the imposition of penalty of Rs. 1 lakh. The finding recorded from para 3 to 6 is reproduced herein: