JAY SCIENTIFIC CO Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS appeal is filed against the order of the Collector of Customs, Madras dated 30-12-87. The issue relates to the import of Haemometers described as Blood Cell Separators under Open General Licence vide Appendix 6, List 2, Sl. No. 26 of the April-March 1985-88 Import Policy. Blood cell separators are listed in the said List under the category 'Life Saving Equipments'. The haemometer imported by the appellant and described as Blood cell separator is intended for measuring the haemoglobin content of the sample of the blood. The Collector has held that the haemometers valued at Rs. 1,29,007/- under importation under O.G.L. cannot be held to be Blood cell separators and confiscated the same in the absence of a valid import licence, under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and allowed the redemption of the same on payment of a fine of Rs. 1.3 lakhs.

(2.) The learned Advocate for the appellant Shri Balani pleaded that the goods imported are known as Blood cell separators in trade parlance and the appellant has been allowed import of the same goods earlier on 16-12-86 by the Custom House under O.G.L. describing the same as Blood cell separators, and the appellant has opened a Letter of Credit for the import of the present consignment after the clearance of the goods earlier imported. He has pleaded that in view of this, no action need be taken against the appellant and cited the following case law in support of his plea :

(3.) THE short point that arises for consideration is whether the Haemometers could be treated and considered as Blood Cell Separators. It is an admitted fact that no separation of blood cells takes place in the unit. No evidence has been produced before the lower authority or before us to show that the goods are known in the trade as blood cell separator. THE learned Advocate's plea is that inasmuch as the earlier import was allowed, the appellants are entitled to the clearance of the present import under O.G.L. as well. However, according to the learned SDR the issue relating to the earlier import under O.G.L. is under review by the authorities. We observe that the blood cell separator figures in Serial No. 26 of List 2 in Appendix 6 of the Import Policy AM 1985-88 under the Head 'List of Life Saving Equipments allowed for import under the O.G.L.' THEre is also not a whisper from the appellants that the Haemometers could by any stretch of imagination function as a blood cell separator. Further, the product literature of the supplier also does not show that it is a blood cell separator. THE appellants are in the medical field and it is not understood how they could construe the Haemometer under importation could be a Blood cell separator when admittedly there is no separation of blood cells at all involved in the use of Haemometer. In our view it is a clear case wherein flagrant disregard of the description as set out in the Import Policy, the appellants have gone ahead to import the item, Haemometer under the guise of Blood Cell Separator. THE list provides for import of certain life saving equipments under O.G.L. to ensure the availability of modern Medical Technology for the citizen of this country notwithstanding the expenditure of scarce foreign exchange resources of the country. THE importer has scant regard for the purpose for which the provision has been made in the Policy and have obviously misdescribed the goods as Blood cell separator to mislead the authorities into passing the goods as life saving equipment. It is also not understandable how the authorities allowed the import of the goods (Haemometer) earlier against the entry for Life Saving Equipment which in no way covers the goods by any stretch of imagination. We observe that the lower authority has rightly confiscated the goods. No evidence has been produced to show as to how the redemption fine fixed could be considered as high. We, therefore, find no reason or justification to reduce the same. THE fact that an earlier consignment has been allowed in a case like this cannot be a mitigating circumstance as the violation of the law is quite flagrant as held by us above. In this view of the matter, we dismiss the appeal.