1. This appeal is directed against the Order-in-Original bearing No.S/10-112/84ACU dated 13-1-1984 passed by the Collector of Customs, Air Cargo Complex, Bombay.
2. The appellants imported the item UV - Visible Spectrophotometer (Double Beam) complete with accessories and spares covered by import invoices No. 46106 and 46113 dt. 25-10-1983 and comprising of Lamda 3B UV-VIS Spectrophotometer, RS-232C Accessory, I F Lamda 3 II software, PECUV software, Model 3600 Data Station, PR 100 Printer, Integrating sphere, paid of cells cite ca 10 mm patn length and MULT software and sought for clearance under OGL Appendix 2, Sr. No 25(6) of AM 84 of the Policy. The clearance was objected to by the department on the ground that the same was computer system and hence hit by the provisions of Para 22 of Chapter 5 of AM 83-84 Policy and the prior permission from the Department of Electronics had not been obtained and hence not importable under OGL. A show cause notice was waived and personal hearing was given where after considering the catalogues produced by the appellants, the authorities below came to the conclusion that this was a computer based system and was not permissible to be imported under OGL without obtaining the clearance from the Department of Electronics. The import was therefore considered unauthorised and the goods were confiscated under Sec 111(d) of the Customs Act but allowed the same on payment of redemption fine of Rs. 50,000/-. The adjudicating authority however did not impose any personal penalty on the appellants.
3. Shri V.N. Deshpande, the Ld advocate on behalf of the appellants has submitted that the appellants are the DGTD unit and are the actual user and that they have imported the Spectrophotometer (Double Beam) which is an item permissible under Appendix 2 as OGL item. In his submission, even assuming that the item was computer based it was not a computer system and hence the provision of Chapter 5 of the Policy did not stand attracted. He submitted that the import being otherwise valid confiscation thereof was absolutely illegal.
4. Heard Shri K.M. Mondal, the SDR. He has however contended that the literature/pamphlet itself shows that what is imported is a complete computer system in itself, which is Spectrophotometer and he took me through the catalogue to substantiate the same. In his submission, when the manufacturer themselves have branded the same as the computer system, there is no reason to take a different view from the same and admittedly the import of all the computer systems is governed by the provisions laid down in Chapter 5 of AM 1983-84 Policy. He also took me through the definition of the computer system as specified in para 5(9) of the Policy and submitted that here is nothing but a computer system which is sought was to be imported and that the order passed by the authority below is just and proper and calls for no interference.
(2) Whether the import thereof is permissible under OGL, without complying with the requirements of Chapter 5 of the Policy AM 1983-84? 6. Considering the first point, the appellants themselves have produced a literature relating to the item imported, and the catalogue clearly mentions that it is a completely micro computer controller system. At other place, the same literature describes the same as "A UV/Visible computer system designed for to-day's library needs". The authorities below have considered the details in the catalogue extensively and have held the item as completely computer based. A plea is raised that item being computer based is something different from a computer system, however considering the definition of computer system in Para 5(9) of Chapter 2 of the Policy Book AM 1983-84, there hardly remains any scope to hold the item imported as being other than a computer system.
7. The question that then remains to be examined is whether its import as OGL item without complying with the requirement of Chapter 5 of the relevant Policy Book is permissible.
8. It is an undisputed fact that this specific item, namely VV Spectrophotometer (double beam) is found at Serial No. 25(6) of Appendix 2 of the Policy Book, which is the list of Capital Goods allowed under Open General Licence. There is no qualifying clause restricting the same to any specific type of Spectrophotometers. To put it otherway, it does not specify "non-computerised", Chapter 3 of the Policy Book pertains to Capital Goods, and para 7 in the said Chapter reads thus : "Capital Goods listed in Appendix 2 can be imported by eligible Actual Users under Open General Licence, subject to the conditions applicable thereto." Reading of the said paragraph indicates that imports are subject to the conditions applicable thereto. Before going to examine the conditions applicable, it may be noted that para 9 of the said Chapter reads as under : "An Actual User may apply to the concerned licensing authority for the import of any other Capital Goods which he requires, in the manner and form laid down in the Hand Book of Import-Export Procedures 1983-84. But so far as Computer Systems are concerned, the provisions of Chapter 5 of this book shall be followed." Use of the word "any other Capital Goods" indicates that this provision is for the goods other than those listed in para 7, and the most significant portion in the said para 9 is the last line, which makes a special mention for import of computer system. Reading of the provisions of Paras 7 and 9 conjointly, a clear impression is created that, though, for the Capital Goods, other than those listed in Appendix 2, the import is made subject to the provisions laid down in Chapter 5, if those Capital Goods are the computer system, no such reservation exists for the items listed in Appendix 2, and as such items listed in Appendix 2 could be imported notwithstanding what is provided for in Chapter 5, subject of course to the condition applicable thereto.
9. The conditions applicable to import of Capital Goods listed in Appendix 2 are found in Appendix 10 of the Policy Book of AM 83-84.
Ser. No. 3 in Appendix 10, only provides that Capital Goods covered by Appendix 2 can be imported by actual users (Industrial and Non Industrial). Condition (1) of the conditions governing import under Open General Licence, specified in Appendix 10 reads thus.
"(1) Actual Users importing Capital Goods, jigs etc, raw materials, components, consumables and spares, as are covered under Open General Licence, under OGL should be made only in conformity with the conditions laid down. Actual Users shall also ensure that their imports under OGL are strictly in accordance with their phased manufacturing programmes and the conditions of their industrial licences/registrations with the sponsoring authorities concerned." This also does not mention that, if the item is in the nature of a computer system or a computer based, the party had to approach the Department of Electronics (computer group). The same calls for some other compliances, but the authorities below have not alleged non-compliance thereof.
10. It is also not possible to hold that when specific provisions have been separately in the Policy for import of computer systems, by necessary implications, all such items are deemed to be covered thereunder as, for the reasons mentioned while comparing the provisions of para 7 and 9 of Chapter 3, the framers of the Policy themselves have chosen to make a specific mention re : applicability of provisions of Chapter 5, where they have felt that they should be made applicable and mention of a sentence similar to the one in para 9 is conspicuously absent in para 7 or in condition (1) of Appendix 10.
11. Thus, when V. V. Spectrophotometers (double beam) have been specifically listed at Entry No. 25(6) of Appendix 2, without any qualifying clause, and when there is no dispute on the point that what is imported is the same item, and when the only objection thereto is that it is a computer system/computer based and when, from what is discussed above, it is clear that provisions of Chapter 5 would not stand attracted, there is no justifiable ground to object to its import under OGL. The objection raised, and consequent order of confiscation therefor cannot be sustained and are hereby set aside.
12. The appeal, under the circumstances, is allowed. Consequential relief to follow.