Decided on July 10,1991

Kitab Mahal P. Ltd. Appellant


P.K. Desai, Member (J) - (1.) THIS appeal is directed against the order in original No. S/10 -80/84G dated 9 -5 -1984 of the Addl. Collector of Customs, Bombay, ordering confiscation of the consignment comprising of one second -hand Adast Dominant 72 H.P. Two colour offset printing machine as also one Sona stove and two Rubber Blankets vide Section 111(d) of the Customs Act read with Section 3(2) of the Import and Export (Control) Act but granting option to pay a fine of Rs. 30,000/ - in lieu of confiscation for the items other than Sona stove.
(2.) THE appellant filed B/E for clearance of the Offset printing machine claiming clearance thereof under OGL Appx. 10(3) read with Appx. 1(12)/18 of AM 82 -83 Policy. On examination, the consignment, besides printing machine, was found to have contained one Sona stove and two Rubber blankets, though the same were not reflected either in the invoice or B/E. The B/E was accompanied by a certificate of the Chartered Engineer indicating the date of manufacture of the said machine as 1975 and having residual life of 8 to 10 years. The consignment was shipped on 12 -8 -1983 during the Import Policy AM 83 -84. The letter of credit for the said import was opened on 14 -2 -1983 and was valid for shipment upto 20 -5 -1983. The said letter of credit was however amended on 29 -6 -1983 extending the period of shipment upto 15 -8 -1983 and negotiation upto 31 -8 -1983. On enquiry with the importer, it was reported that Sona stove and two Rubber blankets were wrongly supplied by the suppliers and it was conceded that they were not covered under OGL. As regards the letter of credit, the importers submitted that the period of delivery in the letter of credit was extended as the shippers could not ship the goods on account of non -availability of container ship and there were holidays in the whole of Finland. The department, prima facie, felt that the goods were required to be shipped on or before 31 -3 -1983. The clearance was therefore not permitted and the proceedings were initiated resulting into passing of the impugned order. The points raised for determination were whether by opening letter of credit on 14 -2 -1983 during the Policy period 82 -83, the importers could validly import the machine on account of shipment on 12 -8 -1983, when it was no longer an item under OGL and whether in that case import was not valid for want of specific licence. The ancillary issue that arose was whether the shipment on 12 -8 -1983 could be held valid for the purpose of Para 7 of Appx. 10 OGL of the Policy AM 82 -83, against the letter of credit opened on 14 -2 -1983 and whether the letter of credit opened was a confirmed one. The import of Sona stove and Rubber blanket was considered to be unauthorised.
(3.) THE adjudicating authority however came to the conclusion that the benefit under para 7 of Appx. 10 of Policy 82 -83 was not available firstly because there was no evidence as to the registering of the contract with the Foreign Exchange Bank on or before 28 -2 -1983 and further the letter of credit opened was not an irrevocable one and was subsequently altered making the benefit under Para 7 of the Appx. 10, not available to them. Shri Rangwani, the Ld. Consultant, on behalf of the appellants submitted that the order placed and the letter of credit opened, were during the Policy period 82 -83 and that the item imported were very much within the OGL at that time. It was only in Policy 83 -84 that the items were removed from the OGL. He pleaded that the letter of credit, as originally opened, indicated the shipment upto 20 -5 -1983 and merely because the shippers could not arrange for container ship and on account of the holidays in Finland, there was a delay in the shipment and as such the date of shipment in the letter of credit was altered to 15 -8 -1983 and the shipment did take place before the specific date. In his submission, mere alteration in the date of shipment cannot be taken to interpret that the letter of credit was not irrevocable. He further pleaded that the other terms of the contract had remained the same and what is contemplated under Para 7, is entering into the firm contract. The contract here is a firm contract which has been executed and as such the imports were saved vide Para 7 of Appx. 10 of the Policy 82 -83. In his submission, therefore the order of confiscation was not justified.;

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