Full Judgment
2. Proceedings were initiated, which resulted in favour of the appellants vide the order of the Assistant Commissioner of Customs.
While holding that the laboratory grade chemical was importable under OGL, the said adjudicating authority took into consideration the decisions arrived at a joint weekly meeting of the Customs authorities, the fact of Customs clearing such goods under OGL and the precedent decisions of the Commissioner (Appeals), upheld by the Tribunal. For better appreciation of the reasons adopted by the Assistant Commissioner in holding that the laboratory grade chemical was importable without a licence, I reproduce the relevant paragraph of his order.
The issue to be decided in the instant case is whether there was a need of licence in importing the laboratory chemical Triss Hydroxy Methyl Amino Methane or it was freely importable under OGL. In the show cause notice dated 30/09/91 it has been mentioned that the laboratory chemical Triss Hydroxy Methyl Amino Methane was not eligible for clearance under open general licence vide serial No. 26 of appendix 6 List 8, Part-II on the ground that the goods were covered by serial No. 5 70 of Appendix 6, List 8, Part I. I find that the restrictions were applicable to items mentioned in the said list but the word "all Grades " is not there which implies with the contention that it would exclude the laboratory chemical if not categorically mentioned in the appendix.
I find considerable force in the party's citation that the ratio of the judgment in the case of M/s. Chemilab Corporation v. Collector of Customs (Appeals) andWestern Trading Corporation v. Collector of Customs are applicable in the instant case wherein it was held that the import of Laboratory chemicals was permissible under OGL although corresponding chemicals themselves were banned or restricted and it does not mention the words "All grades .
I, Thus consider that in the absence of the specific name of the laboratory chemical against the said entry at Sl. No. 570 of Appendix 6. List 8, Part I and for the reason of absence of the word "All Grades" against it the item Laboratory chemical "Tiss Hydroxy Methylamine Methane " was importable under OGL.
3. On appeal against the above order by the revenue, the Commissioner (Appeals) set aside the above order by observing as under: I have gone through the records of the case in detail. The imported item was clearly covered by Sr.No. 570 of Appendix 6, List 8 Part I and hence cannot be covered by Sr.No. 26 of Appendix 6, List 8 Part II. The imported chemical was Tiss Hydroxy Methyl Amino Methane covered by Sr.No. 570 of Appendix 6 List 8 Part I. That means all grades of that chemical were restricted and could not be imported under Open General licence. Because "All Grades " was not specified does not mean that the same chemical can be freely imported as reagent or laboratory chemical under Sr. No. 26 of Appendix 6, List 8 Part II which allow import under OGL. Accordingly, Sr.No. 26 of Appendix 6, List 8 Part I also do not specify that all reagents/laboratory chemicals irrespective of restrictions elsewhere is allowed under open general licence 4. As is clear from the above, the Commissioner (Appeals) has only seen the two entries but has not appreciated the fact that the Tribunal has already interpreted the two entries and has held that in the absence of words "All Grades" appearing against the entry of chemicals, laboratory grade chemical would not be covered by the same. Reference in this regards is made to the Tribunal's decision in the case of Western Trading Corporation v. Collector of Customs and Chemilab Corporation v. Collector of Customs (Appeals) . When the issue stands decided by the Tribunal, it was not open to the appellate authority to take a view different than the one taken by the Tribunal. I find that the reasoning adopted by the original adjudicating authority is appropriate and in consonance with the law declared by the Tribunal. As such, I set aside the impugned order and allow the appeal with consequential relief to the appellants.