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TMI Blog1989 (9) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ement "Spares needed for the purpose of providing warranty coverage of after sales service, whether free of cost or at a price for their customers which shall be permitted as were/are used by them as components of the said items at the time of manufacture as per para 60 of April-March 1984 Policy, subject to condition as per para 44(2) of April-March 1984 Hand Book". The licence also contained condition "End product wagon tripplers and dust trapping equipment" and the licence is 'automatic licence A.U. Industrial DGTD, existing Unit'. The licence was non-transferable. The Deputy Collector, Kandla issued a show cause notice to M/s. Elecon Engineering Co. Ltd. and the appellants holding that the goods were not permissible for import in view of the provisions under the Import Policy, 1983-84 and as per the conditions endorsed on the licence and that the goods were under-valued. M/s. Elecon Engineering Co. denied ever having obtained and given Letter of Authority for the import licence produced in favour of the appellants. The case was adjudicated by the Collector of Customs & Central Excise, Rajkot in his order dated 15-11-1985. He ordered absolute confiscation of the goods under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed clearance against an Import Licence dated 16-1-1985 issued in favour of M/s. Pratibha Industries with an endorsement "Spares needed for the purpose of providing warranty coverage of the above end products. The goods imported against this licence shall be used only for servicing and maintenance whether free of cost or at a price of the item/machinery/equipment manufactured by the licensee....". The licence also contained the condition "end products - machine tools". The licence was not transferrable. A show cause notice dated 8-8-1985 was issued "by the Deputy Collector of Customs, Kandla to M/s. Pratibha Industries and to the appellants, since the goods were not permissible for import in view of the provisions of the Import Policy, 1984-85 and also that the goods were under-valued and the case was adjudicated by the Collector of Customs & Central Excise, Rajkot vide his order dated 15-11-1985, who ordered absolute confiscation of the goods and imposed a personal penalty of Rs. 15,00,000/- on Shri Satich B. Shan, Manager of the appellant firm. No penalty was imposed on M/s. Pratibha Industries as it was found to be non-existent. Here also, as already stated in other appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the next Policy of 1984-85, they were not banned but were included in the restricted list of items. Therefore, in the 1984-85 Policy, the goods seized were to be banned. The learned Counsel also referred to a clarification given by the Import Licensing Authority regarding the scope of Para 60 of the Import Policy, which is in favour of the appellants. The learned Counsel further contended that the Collector was bound to give a finding on the question of valuation also, which he had not choosen to do in the present case. The Tribunal had given a clear direction in its order dated 20-7-1988 in this regard and this direction of the Tribunal still holds good. Therefore, the learned Counsel submitted that there was sufficient mitigating circumstances for the Collector to have considered giving the appellants the opportunity to redeem the goods. It was also pointed out that the goods having been in storage since their import were also liable for deterioration, which would also be a factor for considering such a release on redemption fine. 4. Shri V.K. Sharma, the learned SDR appearing for the department submitted that there was a request from the respondent Collector for an adjustmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector of Customs, Bombay dated 20-5-1987 in the case of M/s. Nippon Bearings accepting the value declared for ball bearings of Hungarian origin, "In revenue matters, valuation adopted in one case does not having binding effect of adopting the value in the other case. Each and every case has to be seen on its own merits and demerits. Accordingly, we are of the view that the adjudicating authority should re-examine the appellants case on its own merits". The department had preferred a Reference Application against this order of the Tribunal which was also dismissed by the Tribunal's order No. 57/89-A, dated 11-5-1989. We further find that an SLR filed by the appellants against the Cegat order has also been disposed of by the Hon'ble Supreme Court in its order dated 12-7-1989 in SLP (Civil) No. 11925 of 1988 & 11884 of 1984. Therefore, the position is that Tribunal's order of remand in respect of valuation has become final. But we find that the Collector in the impugned order had refrained from going into that issue because he was of the view that the Hon'ble Supreme Court's order dated 3-4-1989 was limited to re-adjudication on the question of option to redeem the goods only. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he discretionary powers of the adjudicating authority in the matter of allowing redemption in the case of prohibited goods were not totally un-noticed by the Tribunal when it issued the order directing the Collector to re-examine the issue of absolute confiscation. We also note in this connection that in the appellant's SLP, the Hon'ble Supreme Court had also passed an order on 12-4-1989 directing the Collector to re-adjudicate on the question of option to redeem the goods. Therefore, there is sufficient grounds to conclude that the Collector should have in the circumstances considered exercing his discretion under Section 125 of the Customs Act, 1962 in respect of the goods under confiscation. 8... Another aspect which we note in this regard is the plea put-forth by the appellants herein that it is not uncommon for the Customs authorities to allow redemption under Sec. 125 of the Customs Act, 1962 of prohibited goods. Also of relevance in this regard in our view is the fact that the goods had been imported in 1985, about four years ago, and there is the possibility of deterioration due to long storage. According to the appellants, the goods had already become rusty and were getti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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