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TMI Blog1987 (8) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... r officer found the colour picture tubes bear label showing mark Sony A - 49 JLVIOX(II), made in Japan. He further noticed that black paint was applied on words Sony and made in Japan. The proper officer on inspection of boxes contained in the cabinet noticed that the outer boxes bear marks Sony KV 2092 EL TRINITORN made in Japan. He also found paper pasted on all the markings of all boxes to hide the markings. The plastic moulded cabinet with front panel and back cover was inspected. Front panel bearing emboss marking Sony but scratched on and black paper applied on it. The front panel and black cover also bear KV 2092 EL TRINITORN. The appellant had also imported 90 sets each of sub-assembly, speaker, twiter set and Antenna and 90 sets each of Remote Control and pressed and punched parts and had filed bills of entry at A.I.R. Cargo Complex. From the goods imported under 3 consignments it appeared that the appellants had imported colour T.V. sets manufactured by M/s. Sony Corporation, Osaka in SKD condition. Since consumer goods in SKD condition are restricted items and could be imported under cover of a specific import licence and under OGL, the customs objected to the cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be imported as per the industrial licence granted to the appellant firm. They are required to manufacture T.V. Sets strictly in accordance with the approved production programme and the firm is not entitled to use the original name of the manufacturers while introducing finished items in the market. In order to comply with the said requirement blackening and pasting papers on the components were made and not with a view to hide the name of the manufacturer or to mislead the general public. He urged that the firm sells its T.V. sets in brand name JAC and the custom authorities have not found any evidence that the appellants firm was marketing the T.V. sets in any brand name other than the brand name JAC . (b) The two consignments sought to be cleared through A.I.R. Cargo complex were against specific licences and not under OGL. The learned Collector had totally missed this aspect. The Policy permitted import of components both under OGL and against licences. Shri Nanavaty forcibly argued that the learned Collector has no jurisdiction or power to club the consignment under OGL with the consignments sought clearance against licences and then hold that all the consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition number 22, the Collector has jurisdiction to go into the question whether the goods sought to be imported under OGL would be required for the manufacturing activities of the appellant and would be in conformity with the industrial licence granted to the appellant. Shri Pal submitted that under 3 consignments the appellant firm had imported all the components of Sony make T.V. sets in SKD condition and therefore the Collector was justified in holding that the import is impermissible having regard to Sr. No. 122 of App. 2, Part B of Import Policy 1985-1988. Shri Pal stressed the attempt made by the appellant to obliterate the markings by black painting and pasting papers. Shri Pal also urged that even outer cartons have also been imported. This clearly indicates that the goods were not indented for the manufacturing process but only to sell them by assembling them and as such the Collector was justified in ordering confiscation and imposing fine and penalty. Shri Pal further submitted that the decision of the Supreme Court reported in 1983 E.L.T. 1456 is not applicable to the facts of this case. On the other hand, Section 16 and Chapter 84 and 85 of the Harmonised Tariff a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been imported without cover of a valid import licence in contravention of Section 11 of the Customs Act, 1962 read with Section 3(2) of the Imports Exports (Control) Act, 1947 and are, therefore, liable for confiscation under Section 111(d) of the Customs Act, 1962, and that the importers are liable for a penalty under Section 112 ibid . 12. During the hearing of this appeal Shri Nanavaty had submitted that the two consignments sought to be cleared at A.I.R. Cargo Complex, Ahmedabad, were against specific licences. Shri Pal did not dispute the said submission of Shri Nanavaty. As a matter of fact, though the Collector s order is silent as to the licences the Collector did not order confiscation of the goods sought to be cleared at A.I.R. Cargo Complex. Therefore, it could be safely inferred that the goods sought to be cleared at the A.I.R. Cargo Complex were not offended goods and they were covered by specific licences. If that be so, the allegation in the show cause notice that the goods sought to be cleared under the cover of 3 bills of entry have been imported without cover of valid import licence and in contravention of Sec. 11 of the Customs Act, read with Section 3(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of such an allegation in the show cause notice and in the absence of a finding by the Collector, the departmental representative cannot be allowed to make out a new case for the department at the time of hearing of the appeal. Section 124 of the Customs Act requires setting out of the grounds on which the goods would be liable to confiscation. The said section embodies the principles of natural justice. The appellants should have an opportunity to meet the grounds on which the department seeks to order confiscation of the goods. If the ground now urged by Shri Pal had not been specified in the show cause notice, the appellant would not have an opportunity to meet that ground. Therefore, allowing Shri Pal to urge such a contention would amount to denial of principles of natural justice to the appellant. There is also no scope to accept Shri Pal s contention that by applying Rule 2A of General Rules for the interpretation of Tariff Schedule the confiscated goods should be treated as complete or finished articles. Rule 2A reads any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and scooters in CKD condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not contain any limitations or restrictions whatsoever against imports of parts and accessories. That being so, if an importer has imported parts and accessories, his import would be of the articles covered by entry 295. The Collector could not say, if they were so covered by entry 295, that, when lumped together they would constitute other articles, namely motor cycles and scooters in CKD condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not there. That obviously he had no power to do. Such a restriction would mean that though under a licence in respect of goods covered by entry 295 an importer could import parts and accessories of all kinds and types, he shall not import all of them but only some, so that when put together they would not make them motor cycles and scooters in CKD condition". 15. The above observations of the Supreme Court aptly apply to the present imports. The imports at A.I.R. Cargo Complex, Ahmedabad, were covered by licences. The imports at Kandla Port are OGL item ..... X X X X Extracts X X X X X X X X Extracts X X X X
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