1990 (3) TMI 165 - AT - Customs

Issues Involved:
1. Entitlement to import under OGL as an 'Actual User Industrial'.
2. Requirement of Industrial Licence under the IDR Act, 1951.
3. Interpretation of 'Industrial undertaking' under the Import Policy.
4. Requirement of IDR Act, 1951 Licence for all industrial undertakings.
5. Description of imported goods as 'Jumbo Rolls'.
6. Misdeclaration of imported goods.
7. Entitlement to benefits of specific Notifications.
8. Tribunal's jurisdiction while a related issue is pending in High Court.
9. Tribunal's authority to declare import as contrary to law without a show cause notice.

Detailed Analysis:

1. Entitlement to Import under OGL as an 'Actual User Industrial':
The Tribunal evaluated whether the applicant, based on its SS1 Registration, qualified as an 'Actual User Industrial' to import Cinematographic Colour Film (Unexposed) Positive under the Open General Licence (OGL) as per Appendix 6, List 8, Part I of the Import Policy for AM 1988-91. The Tribunal concluded that the applicant did not satisfy the criteria for 'Actual User Industrial' under the specified policy.

2. Requirement of Industrial Licence under the IDR Act, 1951:
The Tribunal examined if the applicant, employing less than 50 workers, was required to obtain a licence under the Industries (Development and Regulation) Act, 1951 to be eligible under OGL. It was determined that the applicant needed such a licence to qualify for the import benefits as an 'Actual User Industrial'.

3. Interpretation of 'Industrial Undertaking' under the Import Policy:
The Tribunal considered whether the term 'Industrial undertaking' in the definition of 'Actual User Industrial' under paragraph 6.3 of the Import Policy for AM 1988-91 should be interpreted as per Section 3(d) of the IDR Act, 1951. The Tribunal held that the definition under the IDR Act was applicable, thereby necessitating compliance with its provisions.

4. Requirement of IDR Act, 1951 Licence for All Industrial Undertakings:
The Tribunal addressed whether all industrial undertakings, as per paragraph 6.3 of the Import Policy for AM 1988-91, required a licence under the IDR Act, 1951 to be eligible for imports as 'Actual User Industrial'. It was affirmed that such a licence was mandatory for eligibility.

5. Description of Imported Goods as 'Jumbo Rolls':
The Tribunal evaluated if it was necessary for the importer to describe the imported goods as 'Jumbo Rolls' in the Bill of Entry, despite the relevant Tariff Item 37.02.41 not mentioning 'Jumbo Rolls'. The Tribunal ruled that the description should align with statutory notifications extending concessional duty benefits, which referenced 'Jumbo Rolls'.

6. Misdeclaration of Imported Goods:
The Tribunal considered if the applicant misdeclared the imported goods under Section 111(m) of the Customs Act, 1962 by not describing them as 'Jumbo Rolls' in the Bill of Entry. Despite the declaration matching import documents, the Tribunal found that the omission constituted a misdeclaration as per the exemption Notification No. 253/88-Cus.

7. Entitlement to Benefits of Specific Notifications:
The Tribunal examined the applicant's claim for benefits under Notification Nos. 52/86-Cus., dated 17-2-1986, and 50/88-C.E., dated 1-3-1988. The Tribunal denied these benefits, citing non-compliance with the conditions stipulated in the notifications.

8. Tribunal's Jurisdiction While Related Issue is Pending in High Court:
The Tribunal addressed its jurisdiction to decide on duty concessions when the issue was pending adjudication before the Gujarat High Court. It was determined that the Tribunal had jurisdiction to decide the matter independently of the High Court proceedings.

9. Tribunal's Authority to Declare Import as Contrary to Law Without a Show Cause Notice:
The Tribunal evaluated if it could lawfully declare the import as contrary to law and/or misdeclared without a show cause notice to the applicant. The Tribunal concluded that such a declaration was within its authority, even in the absence of a show cause notice, as the applicant had not waived the requirement for such notice.

Conclusion:
The Tribunal rejected the reference application as not maintainable, holding that the issues raised involved the determination of questions related to the rate of duty or the value of goods for assessment, which are appealable directly to the Supreme Court under Section 130 E(b) of the Customs Act, 1962. The Tribunal emphasized that the applicant had submitted to the jurisdiction of the Special Bench and could not later contest the maintainability of the application.

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