Confiscation & penalty — Transfer of licence — Goods
sold on high sea sales basis and Bill of Entry amended — Goods not being
covered by additional licences, transfer of such amounts to void transaction —
Confiscation & penalty not justified (2) Show Cause Notice — Mere marking
of a SCN without specifically asking the parties to show cause not regardable
as show cause notice (3) Fusi Minilab 30 system fully computerised, required in
photographic studio — Import permissible under OGL as covered by Item 9(24) of
Appendix 2 of Import Policy AM 1983-84 (4) Project Import — Minilab system —
Eligible for concessional rate of duty under Heading 84.66 of CTA (5) Valuation (Customs) — Value determined by
Deptt. based upon evidence of import of similar machine though justified but
margin to be given due to change in mode of transport (6) Order — Warning
administered by Additional Collector or caution to party not amounts to
“decision” or “order” because no quasi judicial power was vested with him —
Appeal against such warning not entertainable by Tribunal in terms of Section
129A(1)(a) of Customs Act, 1962
The Supreme Court Bench comprising Hon’ble Mr. Chief Justice
S.P. Bharucha, Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice
Shivaraj V. Patil on 16-4-2002 dismissed
the Civil Appeal Nos. 7964-65 of 1995, filed by Collector of Customs, Bombay
against the CEGAT Order Nos. 374-382/94-A, dated 7-12-1994 and reported in 1995 (75) E.L.T. 513 (Tribunal) (Expo Combines v. Collector). While dismissing the appeals, the Supreme Court passed
the following order :-
“We
have heard learned Counsel for the appellant.
We
find no reason to interfere with the order of the Tribunal.
The
appeals are dismissed.
No
order as to costs.”
The Appellate Tribunal in its impugned order on the issue of
trafficking of licence had held that goods sold on high sea sales basis and
Bill of Entry was permitted to be amended by changing the name of importers.
Goods imported not covered by additional licences, transfer of such licence
amounts to void transaction, conferring no rights and obligations on concerned
parties. Hence, such transer not amount to illegal importation. So not liable
for confiscation and penalty under Sections 111(d) and 112 of Customs Act, 1962
respectively.
The Tribunal further held that mere marking of a copy of SCN
without specifically asking parties to show cause is not regardable as SCN.
Non-mentioning ‘others’ was not a mere technical omission since substantial
changes were made known to the parties by marking respective copies of the SCN.
The Tribunal also held that “Fusi Minilab 30 system” fully
computerised and required for photographic studio is permitted to import under
OGL because it was covered by Item 9(24) of Appendix 2 of Import Policy AM
1983-84.
The Tribunal also held that “Minilab system” imported under
Project Import is eligible for concessional rate of duty under Heading 84.66 of
CTA, 1975. Service industry can also be included in scope and coverage of
Project Import.
The Tribunal further held that the value determined by the
Deptt. for the goods in question is based upon evidence of import of similar
machine. However, margin is to be given due to change in mode of transport.
Accordingly Tribunal remanded the matter so as to give an opportunity to
appellant to adduce evidence in support of their plea.
The Tribunal while relying on its decision in case of T.G. Merchant & Co. [1984 (16) E.L.T.
269 (Tribunal)], held that Appeal No. C/569/85-A is not maintainable as warning
administered by Addl. Collector or caution to party being not an exercise of
quasi judicial powers vested with him, not a ‘decision’ or ‘Order’. Appeal
against it does not lie to Tribunal in terms of Section 129A(1)(a) of Customs
Act, 1962.
A report relating to the admission of Civil Appeal Nos.
7964-65 of 1995 was published in 2001 (133) E.L.T. A167 (S.C.).
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