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TMI Blog1985 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... llants were granted REP licence bearing No. 3005290, dt. 27-10-1983. The appellants imported from Karachi the following three consignments of dry fruits which according to the appellants are raw materials for Chutneys, Chivda and Barfi: (1) 1000 kgs. Hard Shell Almonds unselected. (2) 6000 kgs. Dry Figs Quality No. 3. (3) 6000 kgs. Raisins Quality No. 3. The total C.I.F. value of the above goods was Rs. 2,18,000/- and odd. 4. The appellants sought clearance of the said consignments against the above said REP licence. The Custom Authorities however did not permit clearance holding that the licence in question did not cover the goods imported. The Additional Collector of Customs who held the enquiry after consideration of the contentions urged before him held that (1) According to the ITC Policy the importers can import raw materials and components by virtue of endorsement of Para 138 (1) required for their uses given in the Appendices 3,4,5,7 etc. or required by the supporting manufacturers. (2) The items imported are not appearing anywhere in the Policy in these appendices. The said licence is also having a list of supporting manufacturers and the items cannot be used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls within any of the Appendices in sub-paras 3, 4, 5 and 6 of para 138 such items could be imported only to the extent of the value mentioned in those sub-paras. 7. Shri Patel also urged the following grounds: (i) Since the imported goods did not fall within any of the sub-paras 3, 4, 5 and 6 of para 138, the appellants were entitled to import the goods in question to the extent of the full licence value. (ii) The dry fruits are not consumer goods even if they are to be treated as consumer goods, for the purpose of the import they have been excluded from the category of consumer goods by reason of provisions of Chapter 12 of the Policy for 1983-84. Elaborating his contention Shri Patel urged that Chapter 12 permitted import of dry fruits for stock and sale by the dealers. If that be so the Export House which held the REP licence cannot be in a disadvantageous position and it could not have been the intention of the Policy makers that the manufacturer exporter should look to the merchants for their requirements of raw materials. (iii) It was also urged by Shri Patel that since actual import took place during the Policy 1985-88 no objection could have been raised because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al memo as well as in the reply to the show cause notice. 9. It was further contended by Shri Pal that the Dry Fruits are not banned items but they are only restricted items, and therefore, they could be imported only against a specific licence and not as an OGL item. Shri Pal finally submitted that the appellants sought clearance only against their licence and the licence did not cover the import, and therefore, the Additional Collector was justified in passing the order which he had passed. 10. We have carefully considered the submissions made on both sides and perused the records of the case. From the documents produced by the appellants we are satisfied that they hold a small scale industry registration certificate issued by the Joint Director of Industries, State of Maharashtra. The certificate was valid for the products such as chutneys, confectionaries, pickles, chocolates etc. The certificate clearly states that it was issued in terms of para 31 of the Hand Book of Import-Export Procedures of AM. 82 for the purpose of raw materials assistance. 11. Though the Additional Collector had recorded a finding that the goods imported are not known to be the raw materials of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16. The appellants have produced their licences. It is dated 27-10-1983. In this licence licensing period is mentioned as AM.83 which according to the learned Advocate should be 84. The dry fruits imported are not specifically mentioned in this licence though cashew nuts which is a dry fruit was specifically mentioned. The licence however, bears an endorsement which was to the effect this licence will also be valid for import of items permissible under para 138(14) of the Import Export Policy Volume I 1983-84 for a value not exceeding Rs. 2,75,100/-. The materials imported under this provision may also be disposed of to the supporting manufacturer/s as per list attached who shall utilise these imported materials supplied to them subject to actual user conditions as laid down in Schedule V to the Imports Control Order, 1955. The licensee while availing the facilities under para 138(14) should not import Tin Plate/OTS/Waste/Wastes. There is another endorsement revalidating for further six months period. 17. It is now seen from the licence produced that it permitted import of items permissible under para 138(14) of the Import Export Policy Vol.1 1983-84. It was however, stipulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 5 - Part B of this Policy will not be allowed to be imported. One of the items mentioned in Appendix 4 of AM.83-84 is all consumer goods, howsoever described of, industrial, agricultural or animal origin not appearing individually in Appendices 3,5,8 and 9 or specifically listed for import under Open General Licence. (See item 93 page 121). It was not the contention of Shri Patet that the imported goods appear individually in Appendices 3,5,8 and 9 or specifically listed for import under OGL. Item 104 of Appendix 2, Part B of AM.84-85 reads: all consumer goods, howsoever described of industrial, agricultural, or animal origin, not appearing individually in Appendices 3 Part-A, 4 Part-A and 5 or specifically listed for import under OGL . It was not the contention of Shri Patel that the imported goods appear individually in Appendices 3 Part-A, 4 Part A and 5 or specifically listed for import under OGL. Item 121 of Appendix 3 Part-B of the Policy 85-88 reads: all consumer goods howsoever described of industrial, agricultural, or animal origin, not appearing individually in Appendices 3 Part A and 5 or specifically listed for import under OGL . It was not the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are banned, the traders cannot be permitted to import for stock and sale. It was further urged by Shri Patel that paragraph 138(1) of the Policy 1983-84 specifically allowed import of raw materials required by the registered exporters and on this ground also the consumer goods ceased to be consumer goods for the purposes of import. There is no merit in any of these contentions. We have noticed that the dealers engaged in the trade were allowed to import dry fruits not under OGL but against licences issued to them. Further, the dry fruits are not banned items, they are only restricted items. Therefore, the contention of Shri Patel that licences cannot be issued in respect of banned items is presumptive. The other contention of Shri Patel, namely, that paragraph 138(1) of the Policy 83-84 permitted import of consumer goods as raw materials by the registered exporters is also untenable. The special facility provided under that paragraph was subject to the conditions laid down in other sub-paragraphs of paragraph 138. Sub-para(5) of para 138 clearly stipulates that items mentioned in Appendix 4 of that Policy will not be allowed. We have referred to the Policies of the year 84-85 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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