Gmmco Ltd. Vs. Cc - Court Judgment

Excerpt:
1. after hearing both sides duly represented by shri t.s.balasubramaniam, learned advocate for the appellants and shri a.jayachandran, learned jdr for the revenue, we find that the short point requires to be decided in the present appeal is as to whether the appellants were entitled to import spare parts for earth moving equipment without a licence. the adjudicating authority has held that inasmuch as the appellants are not the actual users, the importation of spare parts for earth moving equipments by them required a licence in terms of para-75 of the handbook of procedures. inasmuch as no licence has been produced by them, the goods are liable for confiscation and the appellants are liable for imposition of penalty. accordingly, he has confiscated the spares for earth moving machinery with an option to the appellants to redeem the same on payment of redemption fine of rs. 2 lakhs. he has also imposed a personal penalty of rs. 1 lakh upon the appellant under the provisions of section 112(a) of the customs act.2. we find that the eastern regional bench of the tribunal in the case of til ltd v. cc calcutta dealt with an identical issue and after taking into consideration para-23 of the export & import policy for the years 1992-97 has held that spare parts for earth moving machinery can be exported by any person irrespective of the fact whether he was an actual user or not. for better appreciation, we reproduce para-6 of the said judgment as under: it is clear from the para 23 of the above that spares for capital goods could be imported by any person whether he was an actual user or not. it is also clear that if such imports require a licence, the actual user alone may import such goods unless the actual user condition is specifically dispensed with by the licensing authority. no provision in the export & import policy has been relied upon by the adjudicating authority to hold that an actual user licence was required for the import of the spares in question. in such a case, it cannot be held that there was any restriction on the import of spare parts of earth moving machinery during the relevant period. the law relating to the effect of provisions of the handbook is quite clear. this tribunal had held in hemani industries' case that handbook merely prescribes certain administrative guidelines while the legal provisions are contained in the import policy. restrictions, if any, are to be found in the import policy. no such restriction has been relied upon by the commissioner in the impugned order. restrictions cannot be placed through the handbook. they have to be issued through notifications to be published in the gazette of india. revenue has not relied on any notification so issued.3. inasmuch as the issue already stands decided by the above decision, we follow the same and set aside the impugned order passed by the authorities below. the appeal is thus allowed with consequential relief, if any, to the appellants.

Judgment:
1. After hearing both sides duly represented by Shri T.S.Balasubramaniam, learned Advocate for the appellants and Shri A.Jayachandran, learned JDR for the Revenue, we find that the short point requires to be decided in the present appeal is as to whether the appellants were entitled to import spare parts for earth moving equipment without a licence. The adjudicating authority has held that inasmuch as the appellants are not the actual users, the importation of spare parts for earth moving equipments by them required a licence in terms of para-75 of the Handbook of Procedures. Inasmuch as no licence has been produced by them, the goods are liable for confiscation and the appellants are liable for imposition of penalty. Accordingly, he has confiscated the spares for earth moving machinery with an option to the appellants to redeem the same on payment of Redemption Fine of Rs. 2 lakhs. He has also imposed a personal penalty of Rs. 1 lakh upon the appellant under the provisions of Section 112(a) of the Customs Act.

2. We find that the Eastern Regional Bench of the Tribunal in the case of TIL Ltd v. CC Calcutta dealt with an identical issue and after taking into consideration para-23 of the Export & Import Policy for the years 1992-97 has held that spare parts for earth moving machinery can be exported by any person irrespective of the fact whether he was an actual user or not. For better appreciation, we reproduce para-6 of the said judgment as under: It is clear from the para 23 of the above that spares for capital goods could be imported by any person whether he was an actual user or not. It is also clear that if such imports require a licence, the actual user alone may import such goods unless the actual user condition is specifically dispensed with by the licensing authority.

No provision in the Export & Import Policy has been relied upon by the adjudicating authority to hold that an actual user licence was required for the Import of the spares in question. In such a case, it cannot be held that there was any restriction on the import of spare parts of earth moving machinery during the relevant period.

The law relating to the effect of provisions of the Handbook is quite clear. This tribunal had held in Hemani Industries' case that handbook merely prescribes certain administrative guidelines while the legal provisions are contained in the Import Policy.

Restrictions, if any, are to be found in the Import Policy. No such restriction has been relied upon by the Commissioner in the impugned order. Restrictions cannot be placed through the Handbook. They have to be issued through notifications to be published in the Gazette of India. Revenue has not relied on any notification so issued.

3. Inasmuch as the issue already stands decided by the above decision, we follow the same and set aside the impugned order passed by the authorities below. The appeal is thus allowed with consequential relief, if any, to the appellants.