1990 (10) TMI 222 - AT - Customs

Summary

Issues:
- Interpretation of provisions of Para 1 of O.G.L. and its relation to Para 232 of Import Policy AM 1983-84 and Para 5(3)(iii) of Import (Control) Order, 1955.
- Whether second-hand goods can be imported by units in Free Trade Zone contrary to import policy regulations.
- Applicability of Appendices 21 and 2 in determining import conditions for goods in Free Trade Zone.

Analysis:
The judgment by the Appellate Tribunal CEGAT, BOMBAY involved two Reference Applications moved by the Collector of Customs, Kandla, addressing the same legal question to be referred to the High Court. The applications were heard together as they involved the consideration of the same issue. The question at hand was whether the provisions of Para 1 of O.G.L. permit the import of second-hand Capital goods and how it relates to Para 232 of Import Policy AM 1983-84 and Para 5(3)(iii) of Import (Control) Order, 1955. The Ld. SDR argued that the goods in question were second-hand goods, and the issue to be determined was whether they could be imported by units in the Free Trade Zone, contrary to the import policy regulations.

During the hearing, the Ld. Company Secretary for one of the respondent firms argued that the issue before the Bench was limited to the interpretation of whether Appendix 21 exclusively applied to units in the Free Trade Zone for import purposes. The Bench concluded that the import of goods in the Free Trade Zone falls under the purview of Appendix 21, regardless of whether the goods are listed in Appendix 2, as long as there are no restrictions mentioned in Appendix 21 or elsewhere. The Company Secretary contended that the new legal issue raised in the Reference Application was not argued before the Tribunal and was not covered in the adjudication order, citing relevant legal precedents to support the argument that the Reference Application was not maintainable.

After considering the arguments presented by both parties and the written submissions, the Tribunal found that the Collector had introduced new legal provisions at a later stage, which were not part of the original argument or adjudication order. The Tribunal emphasized that the Reference Application should not be used to rectify omissions in the adjudication order or introduce new legal arguments that were not previously addressed. It was noted that if a point of law was not raised before the Tribunal and no finding was given on that point, it cannot be brought up through a Reference Application. Therefore, the Tribunal dismissed the Reference Applications, stating that they lacked merit based on the clear legal position established by the Supreme Court and the facts of the case.