P.K. Desai, Member (J) -
(1.) THIS appeal is directed against the Order -in -Original No. S/10 -155/89 -II dated 22 -9 -1989 of the Additional Collector of Customs, Bombay, ordering confiscation of the consignment of 5030 kgs. of non -alloy steel based nickel cludded plates, vide Section 111(d) of the Customs Act, but granting option to pay fine of Rs. 50,000/ - in lieu of confiscation.
(2.) THE appellants imported the subject consignment and sought clearance for home consumption, claiming the items as importable under Open General Licence, vide Entry No. 851 of List 8 Part I of Appendix 6 of ITC Policy 1988 -91. The item was importable by Actual User (Industrial). The appellants were holding provisional industrial licence for manufacture of ethyl cellulose, and the item imported was claimed to have been required for the purpose of manufacture of reactor vessel. The departmental authorities therefore felt that the item was meant for manufacture of chemical machinery, and the appellants did not possess the licence in relation thereto. On objection being raised, the appellants approached the concerned authority and obtained necessary endorsement. However, Show Cause Notice dated 29 -8 -1989 was served, and after receipt of reply and grant of personal hearing, the impugned order was passed, holding that the consignment was shipped on 8 -6 -1989, and Bill of Entry for home consumption was filed on 4 -7 -1989, whereas, the relevant endorsement making the appellants eligible for import, was obtained only on 10 -7 -1989, and as such, on the date of import, the appellants were not eligible to import the same.
(3.) MR . D.H. Shah, the Ld. Advocate for the appellant contended that, reactor vessel was one of the essentials for manufacture of ethyl cellulose and that the appellants did possess licence for manufacture of the ethyl cellulose, and as the actual user, the appellants could import the subject goods. He referred to the CEGAT NRB decision in Plastics and Metals (P) Ltd. v. Collector of Customs, 1990 (47) E.L.T. 424 (Tribunal) and pleaded that, the ratio of the said decision could more forcefully stand applicable here. Mr. Shah, further stated that even otherwise, condition No. 1 of the OGL conditions, in Appx. 6 of the ITC Policy, 1988 -91 required production of valid industrial licence of registration as an actual user, at the time of clearance of the goods, and submitted that Bill of Entry was filed on 4 -7 -1989, with a requisite industrial licence, but as some technical flaw was noticed, necessary endorsement was obtained immediately and as such, when the clearance was sought, all the required formalities had been undergone. Referring to the findings of the adjudicating authority, he submitted that even the said authority was satisfied that "the importer had broadly met the condition for OGL clearance". In his submission, the adjudicating authority having convinced of due compliance, instead of releasing the goods, contradicting his own views, ordered confiscation. Mr. Shah also pleaded that the authority had even otherwise, made certain self -contradictory observations, indicative of non -application of mind, in due adjudication of the matter.
Mr. K.M. Mondal, the Ld. SDR, while supporting the order, conceded that but for the alleged non -compliance of holding requisite industrial licence, to indicate the status of actual user and manufacturer of the product, for which the subject goods were the inputs, OGL was available to them. He also admitted that the subsequent endorsement dated 10 -7 -1989, in the Industrial licence, even removed the obstacle which was otherwise existing. He however pleaded that the appellants, ought to have got the said endorsement made, prior to placement of order, or in any case, before the goods were shipped, whereas here, even till the goods landed and Bill of Entry for home consumption was filed, no such endorsement existed and it was only on the objection being raised, that the endorsement was got done. In his submission, condition No. 1 contemplated fulfilment of actual user condition and availability of documents in relation thereto, before the import is effected, and undisputedly the appellants did not fulfil the same at that material time. He however agreed that no imputation of mala fide could be made and as such, no penalty is also imposed. According to him, however, in strict sense of the terms, the import was unauthorised.;