1995 (6) TMI 110 - AT - Customs

Issues Involved:
1. Whether the imported goods (Nickel Cadmium Rechargeable Batteries) are consumer goods requiring a specific license or permissible under Open General License (OGL).
2. Whether the respondent qualifies as an "actual user" under the relevant licensing policy.
3. Interpretation and applicability of Public Notice No. 32/ITC/PN/92-97, dated 17-7-1992.

Issue-wise Detailed Analysis:

1. Whether the imported goods are consumer goods requiring a specific license or permissible under OGL:

The Department contended that the imported Nickel Cadmium Rechargeable Batteries are consumer goods and fall under the Negative List of Imports, specifically under Sl. No. 156(A) of the Import Policy AM 1992-97, which requires a specific license for import. The original authority had confiscated the goods, allowing redemption on payment of a fine of Rs. 2 lakhs. The Collector (Appeals) set aside this order, stating that the goods were not listed in the negative list and could be imported under OGL as per Public Notice No. 32/ITC/PN/92-97, dated 17-7-1992.

2. Whether the respondent qualifies as an "actual user" under the relevant licensing policy:

The respondent, a small scale unit engaged in manufacturing rechargeable lamps and emergency lights, argued that they are an actual user of the imported batteries, which are not manufactured in India. They provided certificates from the Director of Industries and Commerce confirming their status as an actual user. The Department did not dispute this fact but contended that the goods are consumer items and thus require a specific license.

3. Interpretation and applicability of Public Notice No. 32/ITC/PN/92-97, dated 17-7-1992:

The Public Notice allows the import of accessories, components, parts, and spares of consumer durables by actual users without a license, provided they are not specifically included in the Negative List of Imports. The respondent argued that the imported batteries fall under this category and are not specifically listed in the negative list, thus making them permissible under OGL. The Department argued that the batteries are consumer goods and should be treated as such under the Negative List.

Judgment Analysis:

Majority Opinion (Vice President and Third Member):

The majority held that the respondent is an actual user and the imported goods are not specifically included in the Negative List of Imports. They noted that the respondent had previously imported identical goods, which were cleared by the Air Cargo Customs, Madras. The clarification in Public Notice No. 32/ITC/PN/92-97 applied to the case, allowing the import under OGL. The appeal by the Department was dismissed, upholding the decision of the Collector (Appeals).

Minority Opinion (Member (Technical)):

The Member (Technical) disagreed, stating that the batteries are consumer goods intended for use in torch lights, which are consumer articles. He argued that the respondent did not qualify as an actual user since the batteries were sold as power packs, not used directly in manufacturing. He also noted that the order of the Collector (Appeals) was cryptic and lacked proper analysis. He upheld the original order of confiscation and the imposed fine, allowing the Department's appeal.

Final Order:

In view of the majority decision, the appeal filed by the Department was dismissed. The respondent was allowed to import the goods under OGL as per Public Notice No. 32/ITC/PN/92-97, dated 17-7-1992, confirming their status as an actual user and the applicability of the Public Notice to their case.

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