1987 (9) TMI 222 - AT - Central Excise

Goods imported although can be used for measuring thickness of lens are not ophthalmic equipment/instrument

Summary

Issues Involved:
1. Whether the imported calipers qualify for clearance under Open General License (OGL) as ophthalmic instruments.
2. Whether the calipers imported fall under Appendix 6 or Appendix 8 of the Import Policy.
3. Whether the Collector of Customs (Appeals) correctly interpreted the Import Policy.

Issue-wise Detailed Analysis:

1. Whether the imported calipers qualify for clearance under OGL as ophthalmic instruments:

The respondents imported various types of calipers and sought clearance under OGL, claiming they were ophthalmic instruments as per Item 20 of List 9 in Appendix 6 of the Policy AM 85. The Customs authorities objected, asserting that these calipers appeared in Appendix 8, making them ineligible for OGL clearance. The Dy. Collector of Customs held that the imports were unauthorized under Section 111(d) of the Customs Act, read with Section 3 of the Imports & Exports (Control) Act, 1947, and ordered confiscation with the option of redemption upon payment of a fine.

The respondents appealed, and the Collector of Customs (Appeals) ruled in their favor, stating that the calipers were lens thickness measure gauges and thus eligible for import under OGL. However, upon further appeal, it was argued that the items imported were general-purpose and not specifically for ophthalmic use. The Tribunal concluded that the calipers, though capable of measuring lens thickness, did not qualify as ophthalmic instruments as required for OGL clearance. The pamphlets and trade opinions provided did not describe the calipers as ophthalmic instruments but as precision measuring tools, leading to the conclusion that the imports were unauthorized under OGL.

2. Whether the calipers imported fall under Appendix 6 or Appendix 8 of the Import Policy:

The Tribunal examined the relevant provisions of the Import Policy. Appendix 6 lists items eligible for OGL import, while Appendix 8 lists items that require specific permissions or are restricted. The Tribunal noted that the calipers imported by the respondents appeared in Appendix 8, specifically as vernier calipers (Item 14, Part A), dial indicators (Item 3, Part A), and electronic gauges (Item 27, Part B). According to Para 242(f) of the Policy, any item listed in Appendices 2 to 5 or 8 is precluded from OGL import unless explicitly allowed. Therefore, the Tribunal held that the calipers fell under Appendix 8 and were not eligible for OGL import.

3. Whether the Collector of Customs (Appeals) correctly interpreted the Import Policy:

The Tribunal found that the Collector of Customs (Appeals) misconstrued the provisions of the Import Policy. The Collector (Appeals) had determined that since the calipers could measure lens thickness, they qualified as ophthalmic instruments under OGL. However, the Tribunal emphasized that it is not the potential use but the specific classification of the instrument that determines eligibility for OGL import. The calipers were not described as ophthalmic instruments in any import documents, and the Collector (Appeals) failed to apply this crucial distinction. Consequently, the Tribunal set aside the orders of the Collector (Appeals) and restored the Dy. Collector's orders of confiscation.

Conclusion:

The Tribunal concluded that the imported calipers did not qualify as ophthalmic instruments for OGL clearance and were correctly classified under Appendix 8, making them ineligible for OGL import. The orders of the Collector of Customs (Appeals) were set aside, and the Dy. Collector's orders were restored.