1. The appellants have sought for setting aside the Order in Original passed by Additional Collector of Customs, New Delhi by his Order No.F.No. VIII/12/ACU/10/563/87, dated 19-10-1987 in which the Additional Collector had ordered photographic lenses imported by the appellants valued at Rs. 1,94,865/- to be confiscated under Section 111(d) of the Customs Act and granted redemption of the same on payment of fine for Rs. 50,000/-.
2. The appellants had filed Bill of Entry No. 41152, dated 28-7-1985 for clearance of goods described as "photographic lenses" valued at Rs. 1,94,865/- against licence No. P/W/0421338, dated 31-12-1985, The department on scrutiny found that the imported items fall under Sl. No.471((3) of Appx. 3A of Import Policy 85-88 requiring specific licence for clearing the imported goods.
3. A Show Cause Notice dated 2-9-1987 was issued for confiscation under Section 111(d) and Section 112 of the Customs Act, 1962.
4. The appellants had contended before the lower authorities that they had purchased the goods on high seas. The licence produced by them was valued for the goods as per para 265(b) of the policy and that the subject item does not appear under Appx. 2, 3, 5, pt. A, 8 and 10. They had further contended the imported item did not fall under Sl. No. 554 of Appex. 3. The imported lenses were for focusing in camera and as enlarger and the clearance, therefore, is not claimed under Appendix 6(46) as spares of the equipment. They had also submitted that in the past, similar goods had been cleared under OGL Appx. 6. They had further submitted that they had obtained certificate from D.G.T.D. to confirm that photographic lenses other than the sizes 4.5/180 mm is covered under entry 1 of Appex. 6 of the Import & Export Policy 85-88.
The Additional Collector in his impugned order did not accept the contentions of the appellants on the ground that the licence produced by them is an additional licence which permits them to import goods other than those falling in Appx. 2, 3, 5, pt. A, 8 & 10 and held that the licence produced did not cover the imported item. He further held that the clarification obtained from D.G.T.D. is only a statement of what is already available in the policy. The Collector has referred to the reference made to D.G.T.D. in this regard after inspecting the impugned goods who had by their letter dated 16-10-1987 informed the Additional Collector that the imported item falls under Sl.No. 471(iii) of Appendix 3A of Import Policy 1985-88. The Additional Collector also relied upon the statement of the appellants in reply to Show Cause Notice that the imported goods are used by professional cameramen and also used for enlargement purposes. Therefore, the Additional Collector came to the conclusion that the imported goods fall under Sl. No. 471 (iii) of Appendix 3A and hence the additional licence produced by the appellants was not valid one and that the importation is unauthorised one. The Additional Collector, however, did not take a lenient view on account of past practice of clearance of similar goods by accepting addl. licence and on this ground he did not impose personal penalty under Section 112 of the Customs Act.
5. Sri Naveen Mullick, Advocate submitted that the impugned order is unsustainable in law and that the Additional Collector had failed to properly apply the rulings relied upon by the appellants.. He submitted that the additional licence under which the goods were imported governed the impugned goods and that the appellants had sought for clarifications from D.G.T.D. prior to the import and that D.G.T.D. by their letter dated 24-7-1985 had clarified "that import of photographic lens other than sizes 4.5/180 mm are covered under Entry I of the Appendix. 6 of Import and Export Policy 1985-88 subject to the conditions laid therein." He, therefore, urged that it is the additional licence under which the photographic lens was imported. He submitted that if the goods are to be considered as lens systems and held to be covered by Sl. No. 471(3) of Appendix 3A, then the entry in Sl.No. 554 of Appendix 3A would become redundant, since all the lenses falling in that entry would also be covered by Entry at Sl.No. 471(3).
He submitted that there should be an harmonious construction of the provisions of the Import Policy. The entry 554 of Appendix 3A would, therefore, show that only photographic lenses of size 180 mm of 4.5 excluding 200 mm lenses are restricted for import under Appendix 3, Part A and other lenses are not restricted for import. The entry at Sl.No. 471(3) of Appendix 3, Part A, is applicable only to lens system and not to the lenses of the type imported by the appellant.
6. He further submitted that similar goods against similar licences were allowed by department and hence there was no justification for change in the established practice and confiscating the goods. In this connection, he relied upon the following rulings :-Decor India and Ors. v. Collector of Customs, New Delhi, as reported in 1987(31)ELT 400 T. (ii) Gujarat State Export Corporation v. Union of India, as reported in 1984 (17) ELT 50.Shama Engpne Valves Ltd. v. Collector of Customs, Bombay as reported in 1985(5) ETR 128 = 1984 (18) ELT 533 (Tri).
7. Smt. Dolly Saxena, SDR supported the reasoning given by the Additional Collector in the impugned order. She submitted that the D.G.T.D.'s clarifications had been obtained and only thereafter the Additional Collector had adjudicated the matter. She further contended that the appellants cannot take shelter under the additional licence and earlier clarifications by letter dated 24-7-1985 given by D.G.T.D.8. Sri Naveen Mullick in counter argument reiterated that the subsequent letter of D.G.T.D. relied upon by the Additional Collector was more an opinion on systems and the product was not a system.
9. We have carefully considered the pleas advanced from both the sides.
We do not agree with the plea of the appellants that the import of photographic lenses exceeding 180mm/4.5 would not be covered by the Entry at Sr. No. 471(3) of Appendix 3, Part A, 1985-88 I.T.C. Policy because in that case, the Entry at Sr. No. 3 would become redundant.
The scope of the 2 entries i.e. at Sr. No. 1 and 554 of the said Appendix are totally different. The Entry at Sr. No. 471(3) speaks of a lens system whereas the Entry at Sr. No. 554 speaks of photographic lens of adequate specifications. In the instant case, the goods are definitely lens system as opined by the Industrial Advisor of D.G.TJD.vide their letter No. l(2)/87-IED/CLA dated 16th October 87 after examining the goods from the consignment imported by the appellants. It is also admitted by the appellants that the goods imported are used for photographic cameras. Therefore, in view of the categorical opinion of the said Industrial Adviser, the goods are covered by Sr. No. 471(3) of the said ITC Policy which requires a licence from the competent authorities. The goods are therefore, not covered by OGL. We do not find any reference of the additional licence produced by the appellants for covering the goods under import. In view of our aforesaid finding, they are covered by Entry at Sr. No. 471(3) of Appendix 3-A of 1985-88 ITC Policy.
10. The next plea raised by the learned Advocate of the appellants, is that similar goods had been cleared by the Customs under OGL. From a perusal of the Bills of Entry enclosed with the appeal we find that the full description of the goods imported under earlier consignments has not been given. It also appears that no sample was sent to an Expert as has been done in this case and opinion taken from the Expert. It is, therefore, not possible to rely upon the earlier pieces of evidence submitted by the appellants. Therefore, the citations given by the learned Advocate in support of the established practice are not relevant in the instant case because the established practice for such goods has not been proved by the appellants.
11. We also observe from the impugned order that the Adjudicating authority had already taken a lenient view by not imposing any penalty on the appellants and only imposed a fine of 25% of the value of the goods imported. In these circumstances, we do not see any reason to interfere with the impugned order. The appeal is accordingly dismissed.