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TMI Blog1990 (3) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 workers in its factory, it was incumbent upon the Applicant to obtain a licence under the IDR Act, 1951 to be eligible under OGL to import Cinematographic Colour Films (Unexposed) positive as an "Actual User Industrial"? (3) Whether the expression 'Industrial undertaking' occurring in the definition of "Actual User Industrial" under paragraph 6.3 of the Import Policy for AM 1988-91 is to be construed to mean only an 'Industrial Undertaking' as defined in Section 3(d) of the IDR Act, 1951? (4) Whether all industrial undertakings within the meaning of paragraph 6.3 of the Import Policy for AM 1988-91 are required to obtain a licence under the IDR Act, 1951 to be eligible to make imports as an "Actual User Industrial"? (5) When the relevant Tariff Item i.e. 37.02.41 does not describe or mention 'Jumbo Rolls' is it incumbent upon an importer to describe the imported goods as 'Jumbo Rolls' because of such reference in some statutory notifications extending the benefit of concessional rate of customs duty? (6) Whether on the facts and circumstances of the case, the Applicant can be said to have 'misdeclared' the imported goods within the meaning of Section 111(m) of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Rolls means Rolls of width exceeding 1 metre as per Import Policy. The Customs Authorities denied the benefit of concessional rate of duty under Notification 52/86-Cus., dated 17-2-1986 and 50/88 dated 1-3-1988. The benefit of exemption Notification 266/86-Cus., dated 28-4-1986 as amended by Notification 253/88-Cus., dated 16-9-1988 was denied to the applicants as they were not holding an Industrial Licence under the provisions of the Industries (Development of Regulation) Act, 1951 for slitting and confectioning. 4. The Collector of Customs, Rajkot by Order dated 31-1-1989 dropped the charge of mis-declaration of description in the Bill of Entry for the purposes of classification/availing of exemption. He held that the applicants were eligible to import consignment as Actual User (Industrial) in terms of Entry No. 297 of Part-1 of List-8 of Appendix 6 of the Import Policy 1988-91. However, the benefit of exemption under Notification No. 52/86-Cus. and 50/88-C.E. was denied to the applicants. 5. Aggrieved by the said order dated January 31,1989, the Applicant filed a writ petition under Article 226 of the Constitution of India in the Hon'ble High Court of Gujarat at Ahmedabad, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation would lie under Section 130(i) of the Customs Act, 1962. The relevant portion of the Board's Order is as follows :- "The Board is therefore, satisfied that the order of the Collector permitting import of the goods under OGL by treating the importers as Actual User (Industrial) and dropping the charge of mis-declaration is not illegal and proper." 9. In reply Shri A.S. Sunder Rajan, JDR submits that the reference application is not maintainable is as much as the Collector's order is one which relates, among other things to the determination of any question having the relation to the rate of duty of Customs or to the value of the goods for purposes of assessment. He also invites our attention to an order of the Tribunal in the case of Haryana State Electricity Board v. CCE [1989 (42) E.L.T. 43] dealing with a identical situation under the CESA, 1944. 10. Before we proceed to consider the rival contentions of the parties, it would be useful to reproduce sub-section (i) of Section 130 of the Customs Act, 1962 which runs thus:- "130 (1). The Collector of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of duty or Excise" is of wide import. In the case of State Waqf Board, Madras v. Abdul Azeez Sahib, AIR 1968 Mad. 79 it was stated that the words "relating to or in relation to" are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context. They are not words of restrictive content and ought out to be so construed. Adopting this meaning this Tribunal in the case of Shri Niwas Steels Ltd. v. Collector of Central Excise -1985 (19) E.L.T. 235 held that in the light of the said meaning the true meaning and import of the term "an order relating to the determination of any question having relation to the rate of duty excise" can be properly understood only when the order is read not in isolation but alongwith pleadings in the case. Having so read, it was further held that there could be no doubt that the question relating to interpretation of Rule 56A of the Central Excise Rules and Notification No. 144/75-C.E., dated 7-6-1975 would be a question relating to rate of duty of excise. Same view was taken by this Tribunal in the case of Union Carbide India Ltd. v. Collector of Customs, Calcutta -1984 (18) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication as not maintainable". In this case reliance was placed on a judgment of the Supreme Court rendered in the case of Orient Weaving Mills (P) Ltd. v. Union of India, 1978 (2) E.L.T. (J) 311 wherein it was observed that exemption Notifications modified the rate of duty. 7. We respectfully agree with the view expressed in the aforesaid decisions rendered by this Tribunal and would further like to add that the present appeal which has led to the filing of the instant Reference Application was heard by a Special Bench constituted by the President of the Tribunal for hearing such appeals in terms of sub-section (2) of Section 35D of the Central Excises and Salt Act, 1944. The said section so far as relevant for the purpose of this application is reproduced as below :- "35-D. Procedure of Appellate Tribunal. (1)xxxxxxxxxxx (2) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than two members a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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