Decided on July 09,1991



R. Jayaraman, Member (T) - (1.) THIS is an appeal directed against the order in appeal No. 1634/87 BCH dated 1 -4 -1988 passed by the Collector (Appeals).
(2.) THE facts of the case are that the appellants are manufacturers of engine valves. They imported a consignment of welding electrodes valued at Rs. 29,957/ -. These Welding Electrodes are required for their actual use in the manufacture of engine valves and they claimed clearance under OGL Appendix 6, Serial No. 554 which reads as "Welding Electrodes". However, the department objected to their clearance under OGL on the ground that they are composed of Nickel Alloy and they are in the form of rods and hence would be covered by the specific description under Sr. No. 547 of Appendix 3 Part A of Policy 85 -88 and hence would require a specific licence. In the adjudication proceedings initiated by the Deputy Collector, goods were ordered confiscation and a fine of Rs. 30,000/ - was imposed. When the matter was taken up in appeal, the appellants pleaded that the goods have been supplied wrongly to them. The type of welding electrodes required by them is different and hence they sought for permission to re -export. The Collector (Appeals) allowed the appellants' request to re -export the goods on payment of a fine of Rs. 10,000/ -. The present appeal is against the aforesaid order.
(3.) SHRI Shah, the 1d. Advocate stated at the outset that they have not cleared the goods either for home consumption or for re -export till date. When they got the telex message from the supplier indicating the chemical composition, they noticed that the goods were not according to their requirements. However, the original adjudicating authority did not consider their request for re -export. He could not however indicate precisely whether any such request was made before the adjudicating authority but contended that such a plea was made during the hearing. At present, if the goods are available, they are interested in re -export without fine, since the suppliers are interested in taking back the same. He referred to the suppliers indenting agent's letter dated 5 -1 -1987. In this letter, it is confirmed that the suppliers are unable to supply Deloro Alloy NI 60 of Grade X -50 CR Ni Si 6015 and hence they have agreed to take back the goods. Shri Shah also pleaded on merits that the goods imported are only welding electrodes meant for their actual use. All the welding electrodes are covered by entry against S. No. 554 of Appendix 6. The department's contention that since they are nickel based alloy rods, they are specifically covered against S. No. 547 is not correct, because S. No. 547 covers all such nickel and nickel based alloy in the various forms other than welding electrodes. Hence the order of confiscation is required to be set aside. They are not in any way interested in clearing the goods for home consumption. Their only plea is for re -export of the goods without fine otherwise they are abandoning the goods. Shri Singh, the 1d. JDR on the other hand, pleaded that it is not disputed that the goods are nickel based alloy rods and they have been specifically covered by S. No. 547 Appendix 3 Part A and hence they require a specific licence. Even if they have imported welding electrodes, so long as they are nickel based alloy rods, they would be covered by Appendix 3 Part A Sr. No. 547 and cannot be imported under OGL.;

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