ATARI INDIA ELECTRONICS Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THESE are two appeals filed by the appellant against the orders passed by the learned Collector of Customs (Appeals) in case No. S5-3243/85CAP/ITC dated 11-12-1985 and S5-3363/85CAP/ITC dated 22-1-1986. The brief facts are that the goods involved in both the appeals are loaded printed circuit boards imported by the appellant. The appellant is an actual user of the said loaded printed circuit boards. The appellant claimed that under Serial No. 565 (15) of Appendix 6 List 8 Part I of the Import Policy 1985-88 (hereinafter referred to as the Import Policy) it was permissible for it to import the said printed circuit boards under Open General Licence. The said serial No. 565 (15) allows importation under OGL of "Printed Circuit Boards other than those in Appendix 3 Part A". Appendix 3 Part A does not cover loaded printed circuit boards. Accordingly, it was claimed by the appellant that importation by it, who is an actual user, of the said loaded printed circuit boards under OGL was fully in accordance with law.

(2.) The Deputy Collector of Customs, however, held inter alia that loaded printed circuit boards are covered by serial No. 113 of Appendix 2 Part B of the Import Policy and accordingly the import thereof could only be made on the basis of a valid import licence and not under OGL. The importation was accordingly held to be unauthorised and the goods were confiscated under Section lll(d) of the Customs Act, 1962 and the appellant was given an option to redeem the same on payment of redemption fine. The said orders passed by the Deputy Collector were also upheld by the Collector of Customs (Appeals), Calcutta. It was submitted by the appellants that Appendix 6 List 8 Part I contains the list of "items of raw materials, components and consumables allowed for import under OGL by actual users (industrial) only, subject to actual user condition". This would be clear from the heading given at the starting of the said Part I of List 8 of Appendix 6. There is no dispute that the appellant is an actual user of the goods in question and that the same were imported by it subject to actual user condition. The said serial No. 565 (15) of Appendix 6 List 8 Part I specifically permits importation of "printed circuit boards other than those in Appendix 3 Part A". Accordingly, the importation of all printed circuit boards other than those covered by Appendix 3 Part A can be made under OGL by actual users (industrial) subject to actual user condition". The said loaded printed circuit boards imported by the appellant are not covered by Appendix 3 Part A nor it has been so alleged or contended even by the customs authorities. Accordingly, the importation of the said loaded printed circuit boards under Appendix 6 List 8 Part I serial No. 565 (15) by the appellant was fully in accordance with law. The importation of the said goods under OGL by the appellant who is an actual user (industrial) subject to actual user condition was clearly permissible under the said serial No. 565 (15) of Appendix 6 List 8 Part I.

(3.) IT was also contended that Para 21 (c) of the Policy states that an item with a specific description in Appendix 2-(B) of Appendix 3A, will prevail over an item with a generic description in any of the items and that since populated printed circuit board being more specifically mentioned on Appendix 2-B prevails over the generic description "printed circuit board" appearing in Appendix 6, List 8, Part I. Further Para 80(1) of the Policy also precludes import of Appendix 2 ITems under OGL. IT was also contended that as per captions given under these appendices, Appendix 2-B covers list of "restricted items" whereas Appendix 3 covers limited permissible items and that therefore it cannot be the intention of policy to allow import of restricted items like populated printed circuit board under OGL. The learned SDR further contended that there may be some confusion regarding the scope of entry at Sl. No. 565(15) of List 8 of Appendix 6 vis-a-vis Sl. No. 607 (18) of Appendix 3A. But it is for the licensing authority to clarify the confusion and nevertheless in so far as "Populated printed circuit board" is concerned there cannot be any doubt regarding the ban as its import is under OGL.