1998 (4) TMI 299 - AT - Customs

Summary

Issues:
1. Interpretation of Import Trade Control Licence eligibility for goods not listed in Handbook of Procedure.
2. Application of common parlance test for goods classification under Tariff Heading.
3. Scope for importers to form a bona fide belief on goods eligibility for import.
4. Validity of judicial pronouncement based on assumption and presumption.

Issue 1 - Interpretation of Import Trade Control Licence eligibility:
The Revenue filed a Reference Application to the High Court regarding the eligibility of an Import Trade Control Licence for goods not listed in the Handbook of Procedure. The Tribunal's Order clarified that a Special Import Licence issued to the importers covered the goods in question, despite not being listed in the Handbook's Appendix. The Tribunal highlighted that the Licence was amended to include specified items for import, as per the EXIM Policy requirements. The Tribunal rejected the Revenue's contention that the Order was based on presumption and clarified that the entire legal position and evidence on record must be considered, not selective parts.

Issue 2 - Application of common parlance test for goods classification:
The Tribunal considered whether the common parlance test could be applied to determine the classification of goods under Tariff Heading No. 9503.90. The Tribunal noted that the goods in question, battery-operated walkie talkies, were covered by the Special Import Licence issued to the importers. The Tribunal emphasized that the importers had not challenged the goods' classification and had imported them under the Special Import Licence, which specifically allowed for the import of electronic games/toys.

Issue 3 - Scope for importers to form a bona fide belief:
The Tribunal discussed whether the importers could have a bona fide belief that the goods were importable under the Special Import Licence, despite not being listed in the Handbook of Procedure. It was highlighted that the importers obtained the Licence for the items in question, and there was no evidence of mala fide intentions on their part. The Tribunal emphasized that even if there were doubts about the goods' eligibility, the common parlance test could apply based on the importers' reasonable belief.

Issue 4 - Validity of judicial pronouncement based on assumption:
The Tribunal addressed the issue of whether a judicial pronouncement based on assumption and presumption was maintainable in law. It was clarified that the Order had been passed after considering the legal position and evidence on record, without ambiguity in the provisions of law. The Tribunal concluded that there was no question of law requiring reference to the High Court, and thus, rejected the Reference Application.

In summary, the Tribunal's judgment clarified the eligibility of goods under an Import Trade Control Licence, the application of the common parlance test for goods classification, the importers' scope to form a bona fide belief, and the validity of judicial pronouncements based on assumption and presumption. The Tribunal emphasized the importance of considering the entire legal position and evidence when making decisions and rejected the Reference Application due to the absence of any legal ambiguity necessitating a High Court reference.