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TMI Blog1987 (9) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... and as such the same are impermissible for import under OGL. 3. The Dy. Collector of Customs, who held the inquiry by 5 separate orders held that the imports are unauthorised and therefore liable to confiscation under Section 111(d) of the Customs Act, read with Section 3 of the Imports Exports (Control) Act, 1947. Having regard to the above finding, he ordered confiscation of the consignments imported by the respondents herein but allowed redemption on payment of fine as specific in his order. 4. Feeling aggrieved by the orders of the Dy. Collector, the respondents herein preferred separate appeals before the Collector of Customs (Appeals), Bombay. The Collector of Customs (Appeals) allowed all the appeals holding that the Calipers imported are used as Lens thickness measure gauge and therefore eligible for import under OGL. Having regard to his finding, the Collector (Appeals) set aside the orders of confiscation passed by the Dy. Collector and consequentially set aside the fines levied in lieu of confiscation. 5. Feeling aggrieved by the orders of the Collector of Customs (Appeals), the Collector of Customs, Bombay had authorised filing of all these appeals. 6. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calipers or electronic gauges and therefore the Dy. Collector was right in holding that the imports are unauthorised and he was correct in ordering confiscation. The Collector of Customs (Appeals) has, misconstrued the provisions of the Policy and particularly Para 242(f) and there had been no application of the mind on the part of the Collector (Appeals). 8. Shri Pal submitted that in the B/E filed by the respondents, the Tariff Item mentioned was T.I. 90.16 and not T.L 90.17. T.I. 90.16 covers measuring instruments and not ophthalmic items. On this ground also the clearances cannot be allowed under OGL. 9. Finally, Shri Pal prayed that the orders passed by the Collector of Customs (Appeals) may be set aside, the appeals may be allowed and orders passed by the Dy. Collector may be restored. 10. Shri S.D. Nankani, on the other hand, supported the orders passed by the Collector (Appeals). He contended that Item 20 of List 9 of Appendix 6 is permitted for import by all persons under OGL. Lens thickness measure gauge caliper include both vernier and dial caliper as well as electronic ophthalmic. The caliper imported by the respondents are capable of measuring lens. The Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import by all persons. 16. It was also urged by Shri Nankani that there was no allegation of mis-declaration by any of the importers. In the absence of such allegation, the Dy. Collector was not justified in ordering confiscation. Shri Nankani finally submitted that Item 27 appearing in Part B of Appendix 8 is generic whereas the Item 20 of List 9 is a specific item and specific item should prevail over generic item; 17. Shri Balani, appearing for the respondent in A. No. 181/86 adopted the arguments advanced by Shri Nankani. He also urged that by Public Notice dated 8.9.1986 the Item 20 of List 9 of Appendix 6 was deleted and thereby the said items cannot be imported after 8.9.1986 as OGL items. But then, it could have been imported as OGL items prior to 8.9.1986. Shri Balani further submitted that no condition is imposed in Appendix 6 for import of items appearing in List 9. The import of those items are not subject to any other Appendices and therefore the Dy. Collector committed an error in ordering confiscation. Finally Shri Balani urged that the T.I. 90.17 is not applicable on the goods imported and in any case if two interpretations are possible, the interpretation benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve lists of educational scientific and Technical subjects are set out in List 7. List 8 contains raw materials, components and consumables allowed under OGL. List 9 consists of Ophthalmic equipments/instruments. 28. From the scheme of Appendix 6 it is seen that all categories of importers are not permitted to import all OGL items. The categories of importers, the items allowed to be imported by them under OGL are clearly set out in Appendix 6. So far as Ophthalmic equipments/instruments are concerned, all persons are made eligible to import them under OGL. 29. Admittedly, the importers viz. the present respondents in these appeals have sought clearances under OGL and according to them the goods imported by them are covered by Item No. 20, of List 9 of Appendix 6. Significantly, none of the importers described the various types of calipers imported by them as Ophthalmic equipments/instruments. What is permitted to be imported under OGL, Item 50 of List 9 of Appendix 6 is ophthalmic equipments/instruments. If the different types of calipers imported cannot be considered as ophthalmic equipments/instruments then they cannot be allowed to be imported under OGL. None of the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Dial Caliper gauges. To the best of our knowledge, thickness of lenses is measured by gauges of the dial reading and caliper type . It is thus seen that even the trade opinion was not that the calipers imported are ophthalmic instruments. They only stated that the calipers are capable of measuring the thickness of lenses. Significantly, M/s. Baliwalla Homi Pvt. Ltd. stated that the calipers shown to them are not used in their factory. 32. Since the instruments imported do not qualify as ophthalmic instruments they could not have been imported as all items and therefore, the Dy. Collector was justified in ordering confiscation. The Collector of Customs (Appeals) did not even apply his mind as to whether the instruments are ophthalmic instruments or not. He proceeded on the footing that since the instruments are capable of measuring thickness of lenses, they fall under Item 20 of List 9 of Appendix 6. The Collector of Customs (Appeals) failed to realise that it is not all instruments which are capable of measuring thickness of lenses that are permitted to be imported under OGL. If all instruments capable of measuring thickness of lenses are permitted to be imported under Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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