1989 (11) TMI 188 - AT - Central Excise

Issues Involved:

1. Jurisdiction of the Addl. Collector of Customs & Central Excise, Baroda.
2. Clubbing of goods imported at Kandla Port with the goods involved in this appeal.
3. Validity of the import licence produced.
4. Actual user condition and registration certificate requirement.
5. Admissibility of statements recorded under Section 108 of the Customs Act.
6. Past practice of importing loaded PCBs.
7. Classification of imported goods as consumer goods.
8. Penalty imposition on the appellants.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Addl. Collector of Customs & Central Excise, Baroda:

The appellants challenged the jurisdiction of the Addl. Collector, arguing that he was not appointed as a Customs Officer under Section 4 of the Customs Act. The Tribunal found that the Addl. Collector was re-designated and empowered to adjudicate customs cases within the Baroda Collectorate's jurisdiction. The goods were warehoused in Baroda, falling under the purview of Baroda Customs, thus the Addl. Collector had jurisdiction.

2. Clubbing of goods imported at Kandla Port with the goods involved in this appeal:

The Tribunal held that clubbing the consignment imported at Kandla with the impugned goods at Ahmedabad was not permissible based on Supreme Court and Tribunal precedents. The evidence did not support that the imports were on behalf of M/s. Jolly Enterprises. The principle enunciated in the case of Tarachand Gupta & Bros. was followed, rejecting the clubbing of consignments.

3. Validity of the import licence produced:

The import licence's validity was questioned based on the consignment imported at Ahmedabad Airport. The Tribunal found that the appellants did not possess a valid registration certificate for manufacturing electronic assemblies at Baroda. The certificate from West Bengal was not applicable for operations in Gujarat. Thus, the licence was not valid for the import.

4. Actual user condition and registration certificate requirement:

The Tribunal held that the appellants, claiming to be actual users (industrial), needed a valid registration certificate from the appropriate government authority in Gujarat. The certificate from West Bengal was insufficient. Without the valid certificate, the appellants did not fulfill the actual user condition, making the import unauthorized and liable for confiscation under Section 111(d) of the Customs Act.

5. Admissibility of statements recorded under Section 108 of the Customs Act:

The Tribunal noted that statements recorded under Section 108 are admissible as evidence, referencing Supreme Court judgments. The Gujarat High Court's view that such statements should be recorded post-show cause notice was not followed. The Tribunal accepted the statements as valid evidence.

6. Past practice of importing loaded PCBs:

The Tribunal rejected the argument that past practice justified the current import. Wrong clearance in the past did not bind the department. The appellants' lack of a valid registration certificate for actual user status invalidated the import, despite previous clearances.

7. Classification of imported goods as consumer goods:

The Tribunal did not delve deeply into this issue, focusing instead on the validity of the import licence and actual user condition. The Addl. Collector's classification of the goods was not explicitly contested or altered.

8. Penalty imposition on the appellants:

The Tribunal upheld the penalty on M/s. Dipen Enterprises for unauthorized import without a valid registration certificate. However, penalties on M/s. Jolly Enterprises, Shri Suresh V. Shah, and Shri Nilesh V. Shah were discharged due to lack of evidence linking them to the import.

Conclusion:

The appeal by M/s. Dipen Enterprises was dismissed, upholding the confiscation and penalty. Appeals by M/s. Jolly Enterprises, Shri Suresh V. Shah, and Shri Nilesh V. Shah were allowed, discharging the penalties imposed on them.

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