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TMI Blog1987 (9) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods in question were spare parts of a tractor truck which had application in dropsiders, truck tractors, tippers, dumpers and that such items are clearly covered as earth moving machinery under Serial No. 87.02 of the ITC schedule in the AM-1980 Policy has taken the view that no evidence has been produced before the Board to rebut the Collector's finding that MAN trucks are not earth moving machinery. We feel that this issue has not been examined properly either in the order of the Collector or in the order of the Central Board of Excise and Customs. The appeal is against the confiscation and imposition of penalty and quantum of redemption fine. No view can be taken in this regard unless the basic issue of correct classification of the goods is gone into in detail. The orders of the lower authorities are, therefore, to be set aside and the matter remanded to the Collector of Customs for a de novo decision as regards the correct classification of the goods and passing of speaking orders which fully deal with the arguments put forward by the appellants in this regard. 3. Incidentally, while passing de novo orders, Collector may also consider the submissions of the appellants t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ground Nos. 2 & 3 above-said are concerned, Shri Ramanathan does not seriously dispute that the findings were correct. He concedes that certain of the goods were banned items and also that the appellants were not the actual non-industrial users but they were acting only for the IAAI and that after clearance the goods were handed over to IAAI, and was certified by the IAAI to the concerned authorities. He points out that in the subsequent year the position would have been different. But we are concerned with the import as it took place and not the changes in the policy subsequently. We may see that under paragraphs 7 and 8 of Chapter I of the ITC Handbook 1978-79 the import of the appellants was not permissible as they were only agents of the IAAI who were the actual users. The findings of the Collector and the Central Board on points 2 and 3 abovesaid, and the consequent order for confiscation, are hence to be confirmed. 9. As regards the question whether the MAN Trucks would be earth moving machinery, even the catalogue produced before us shows picture of heavy duty trucks only which may be used to transport men or material but would not be earth moving machinery. The reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anand) Member 13. The points on which the Members differ are as follows :- (1) Whether on the facts and in the circumstances of the case, the subject goods were not eligible for import as covered under Item 4 of Appendix 10 of the Import Policy 1978-79 or whether any further investigation on this aspect would be required necessitating a remand to the Assistant Collector for the said purpose. (2) Whether all the goods imported are liable for confiscation regardless of the classification of the goods, past practice of the Custom House and the fact that only some of the goods were banned items. Sd/- (V.T. Raghavachari) Member (J) Sd/- (K. Prakash Anand) Member (T) 14. [Per : D.C. Mandal, Member (T)]. - This appeal was heard by my learned brothers S/Shri K.P. Anand, Member (Technical) and V.T. Raghavachari Member, (Judicial). There was difference of opinion on the following two points :- (i) Whether on the facts and in the circumstances of the case, the subject goods were not eligible for import as covered under Item 4 of Appendix 10 of the Import Policy 1978-79 or whether any further investigation on this aspect would be required necessitating a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports motor vehicles, other than those of Heading No. 87.09). He has also drawn my attention to Item 42(4) of Appendix 10 of I.T.C. Policy for 1979-80 which reads as follows : "Earthmoving machinery only of the types falling under Heading Nos. 84.22, 84.23 and 87.02 and of internal combustion engines bigger than 75 HP in size covered by Heading No. 84.06 in the Schedule 1 to the Imports (Control) Order, 1955." According to Shri Ramanathan, Item No. 87.02 of Schedule 1 and Item No. 42(4) in Appendix 10 of I.T.C. Policy for 1979-80 show that the goods in question were spare parts of earth moving machinery. He has also argued that two consignments whose details are given at pages 54 & 56 of the Paper Book, were imported in the same year 1978-79 by M/s. Hindustan Equipment Engineering Company, Delhi through Bombay Port and clearance of the goods was allowed without imposing any fine or penalty. These cases were cited by the appellants before the Collector and Central Board of Excise and Customs, New Delhi. Those authorities have not given any findings in their orders. Shri Ramanathan has prayed that in view of this, the matter may be remanded to the Collector for re-examination keep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res related to the MAN Chassis which was to be used in Fire Tender. The import in the present case was governed by the Import Policy for 1978-79. Under paragraph 13 of Appendix 10 of that Policy only the spare parts of earth moving machinery could be imported, The spare parts of automobiles other than earth moving machinery were not permitted to be imported under paragraph 13 of Appendix 10 of I.T.C. Policy of 1978-79. The reliance of the learned Consultant on Heading No. 87.02 of Schedule 1 and Item 42(4) of Appendix 10 of I.T.C. Policy for 1979-80 is of no help as the policy for subsequent year cannot govern the import of previous year. According to Item 4 of Appendix 10 of the Import Policy for 1978-79, permissible spares could be imported by actual users (Industrial and Non-Industrial). The goods were imported by the appellants. They were not actual users of the goods. It has been argued that the goods were imported for International Airport Authority of India who were the actual users. In the circumstances, the appellants were not entitled to import even permissible spares under Open General Licence under Item 4 of Appendix 10 of I.T.C. Policy 1978-79. In view of the above pos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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