9911796707
TMI Blog1990 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 112(a)(i) of the Customs Act, 1962. Briefly, the facts are that the appellants imported a consignment as aforesaid and filed a Bill of Entry on 11-1-1989 declaring CIF value of Rs. 32,75,171/-. They claimed clearance of the goods under OGL Appendix 6, List 8, Part I against Serial No. 186 of the Import Policy for April 85 - March 88. They claimed classification of the goods under Heading 37.02 of the Customs Tariff Act, 1975 and claimed exemption of duty under Notification 52/86 dated 17-2-1986 and Notification No. 157/88-Cus., dated 13-5-1988. The Customs House found that the goods were not eligible for exemption under the Notification as claimed and were leviable to duty at 100% plus auxiliary duty 45% plus additional duty @ Rs. 24 per Sq. metre, totalling to Rs. 68,09,540/- instead of Rs. 16,19,842/- as declared and claimed by the appellants. The Customs further concluded that the appellants had misdeclared the goods as Cinematographic colour film (un-exposed) positive in order to claim the benefit of exemption under the Notification and also in order to suit the description in the Notification. When this was pointed out, the appellants requested for adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the goods as cinematographic colour films (unexposed) positive to avail of the concessional rate of duty under Notification No. 50/88-CE at the rate of Re. 1/- per metre plus 45% plus CVD at Rs. 0.80 per metre. Based on this direction from the Board, the Collector filed an application before the Tribunal praying for the modification of the Collector s order dated 31-1-1989 in so far as it related to the dropping of the charges of misdeclaration and non-confiscation of the imported goods under Section 111(d) of the Customs Act, 1962 and praying for the imposition of penalty under Section 112(a)(i) of the Customs Act. This application of the Collector was disposed of by the Tribunal in its order No. 388/89-C dated 14-8-1989. In that order the Tribunal held after considering the evidence that what the appellants herein imported were jumbo rolls and not cinematographic films. The Tribunal also held that the appellants herein should hold a valid import licence and have a valid industrial licence for claiming the benefit of OGL for the import of jumbo rolls. The Tribunal also observed that the Collector was wrong in not invoking the provisions of Section 111(d) of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded by the learned counsel that it was not a case of creation of an extra Special bench of the Tribunal but it was merely a case where the Sr. Vice-President, who has the power of transferring an appeal under Rule 4(2) of the CEGAT (Procedure) Rules, reconstituting the C Bench of the Tribunal for the purposes of this particular appeal. 3. On considering the submissions made carefully, we find that the objections raised by the learned Departmetal Representative are not valid since reconstituting of the C Bench by changing the Members thereof for the purposes of this particular case, before the appeal itself was heard on merits, on grounds of propriety, would not be creation of an extra Bench, and we further find that Section 129(5) of the Customs Act, 1962 delegates powers of the President to the Senior Vice-President and the power of transferring an appeal also vests with that authority under Rule 4(2) of the CEGAT (Procedure) Rules and in this view of the matter, we are inclined to agree with the submissions made by the learned counsel and the preliminary objections raised by the learned Departmental Representative are over-ruled. 4. The Misc. application is for impleadme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent or as an intervener. On consideration of the various submissions made, in this behalf, we observe that the CEGAT had already held earlier that M/s. HPF cannot be considered to be an aggrieved person in relation to the adjudication order of the Collector dated 31-1-1989 but at the same time, had found that there were sufficient grounds on which M/s. HPF could be allowed as interveners in the matter, and since the present appeal also arises out of the Tribunal s remand order, in the interest of justice, we order that the request of M/s. HPF for impleadment in the appeal be rejected, while we permit them as interveners in the matter for the reason aforesaid. 5. Dr. Devi Pal, the learned Sr. counsel appearing for the appellants addressed arguments on the jurisdiction of this Bench to go into the whole matter which had earlier been considered by the Tribunal, and which had been disposed of by remanding the matter to the Collector. The Collector s order passed in pursuance of the remand order is now before us. Dr. Devi Pal submitted that the earlier order of the Tribunal was one of remand and a remand order, he contended, is not a final order, but a tentative one. He urged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the parties and binding on me . The learned counsel further urged that it was further been well settled that if further and fresh facts are brought out on record, there could be a departure from the earlier decision of the Bench by another Bench hearing the case subsequently, for good and cogent reasons, and cited in this connection the case of J.K. Synthetics v. Union of India reported in 1981 (8) E.L.T. 828 of Delhi High Court. In the present case, the learned counsel contended certain aspects of the case, relating to the declaration of the goods giving description by size in the Bill of Entry, and in the invoice, as also the description of the goods as per the licence policy as jumbo rolls, made by the appellants, which could go to establish their case that there was no misdeclaration, had not been brought to the notice of the earlier Bench, as also the fact of the appellant holding a Small Scale Industries registration certificate and the factual details that in their factory, less than 50 workers are being employed and, therefore, the appellant s factory is out of the purview of the provisions of Industries (Development Regulation) Act. This had also not been brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i.e. 1250 metres) and width exceeding 610 mm (i.e. 1140 mm). In the Bill of Entry also, the appellants had correctly declared the goods according to the description of the Tariff Heading as rolls of cinematographic colour films (unexposed) positive, falling under 3702.41 and also given the size showing length as 1250 Mt. and width as 1140 mm. Further, declaration for the purposes of import under OGL has been given pointing out that the goods fall under Item No. 186(i) of the Import Policy 1985-88 which corresponds to Item 297(i) of Appendix 6, List 8, Part I of the Import Export Policy, 1988-91. Therefore, it was urged that the appellants had given the correct declaration both, in terms of the Customs Tariff Act, 1975 and also under Appendix 6, List 8, Part I of the Import-Export Policy, 1985-88. It was argued that the obligation to declare the articles is in terms of the Schedule to the Customs Tariff Act and if such declaration conforms to the requirement of the said Act, there is no question of mis-declaration. According to the learned senior counsel, the earlier Bench proceeded on the erroneous footings as if jumbo rolls are different items from cinematographic films, but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uled Industry carried on in one or more factories by any person, and then reference was made to the definition of factory in Section 3(c) defining it as any promises or precincts thereof in any part of which the manufacturing process is being carried on with the aid of power, provided that 50 or more workers were working thereupon on any day of the preceding 12 months. The learned counsel submitted, from this, it would appear that unless an Industrial Undertaking pertaining to scheduled industry is carried on in any one or more factory, it will not be an industrial undertaking within the meaning of Section 3(d) of the I.D.R. Act. Therefore, if the premises in which less than 50 workers are working in a manufacturing process carried on with the aid of power, it is not a factory within the definition of factory under Section 3(c) of I.D.R. Act. The appellant s case is that they were not employing 50 or more workers at any time. The counsel urged that this contention is supported by the factual position of the Returns Filed by them in Form 4 under the Factories Act and Rules, which were produced before the Collector. The Inspector of Factories has also recorded his findings on surpris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure for Import 1988-91 paragraph 86(1). Therefore, at the time of shipment of the goods, the appellants did have a valid additional licence with them. Therefore, the order of the Collector refusing to accept these licences on the ground that the letter of credit was opened earlier to the transfer of additional licence is, according to the appellants, erroneous. The learned counsel referred to para 215(2) of the Import Policy that the additional licence will be valid for the import of items appearing in Part I, List 8, Appendix 6 of the Policy and as per para 216 of the policy, the additional licences issued in the name of Export House/Trading House will not be subject to Actual User (Industrial) condition. The learned counsel urged that it cannot also be said that the goods imported by them are canalised item. Canalised items in Appendix 5, Part A, Item 6 of the Policy is finished cinematographic colour films whereas the goods imported are raw films in jumbo rolls. 9. On the applicability of the exemption to the goods imported in terms of Notification 52/86 and 50/88, the learned counsel pointed out that the Collector has held that the applicability and the claim for exemption u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces for the clearance of the goods. These licences were valid on the date of shipment. The learned counsel urged that the power to impose personal penalty is a discretionary one to be exercised judicially and should not be a retributive levy, whereas in this case, there is no discussion by the Collector at all for imposing the penalty and for the quantum thereof. The counsel, in this context, cited and relied upon the Supreme Court decision in M/s. Hindustan Steels Limited v. State of Orissa - AIR 1970 SC 253 wherein the Supreme Court observed that whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to exercise judicially and on a consideration of all the relevant circumstances and that even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose it when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. The learned counsel also urged that the redemption fine fixed by the Collector in his order is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and these findings of the Tribunal on facts giving reasons thereto were specific conclusions on the issue according to the learned DR. It will be wrong, according to the learned DR to read the remand order to mean that the Collector could ignore the findings already given by the Tribunal in its order of remand on the issues set before it. It was further pointed out with reference to para 25 of the Tribunal s order that the department requested for remand of the matter to the Collector for determination of the quantum of fine and penalty since information regarding the margin of profit etc. necessary for such determination, was not available before the Tribunal. The learned Departmental Representative also submitted that the issue of eligibility to the exemption notification as determined by the Collector in his first order of January, 1989 was never challenged by the appellants herein before the Tribunal and they had even withdrawn the Writ Petition in this behalf before the Gujarat High Court. This issue was not one of the points to be determined in the direction given by the Central Board of Excise Customs in the application under Section 129D(1) and the Tribunal had also conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were misdeclared for the purposes of wrongfully availing the exemption under these notifications. Notification No. 266/86, on the other hand, is specifically for jumbo roll colour films as the one imported by the appellants. They also had applied for licence under I.D.R. Act saying that they should be enabled thereby to avail of the exemption under this notification. 14. On the question of legality of the import, although the appellants claimed that they had given the Serial No. in the Appendix of the Import Policy OGLs in their Bill of Entry, which would indicate that the goods were in jumbo rolls, yet the department s case is that it is up to the appellants to make the declaration as jumbo rolls specifically which they failed to do. In this connection, he referred to the declaration for purposes of OGL by the appellants. Their own application for licence under the I.D.R. Act also shows that the appellants knew the goods to be known as jumbo rolls, whereas the S.S.I. certificate also refers to the operations carried out by them as cutting/confectioning of jumbo rolls. The fact that in the Trade, the films of this size are referred to consistently of jumbo rolls is also rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations, but yet were granted licence only for slitting and confectioning of photographic colour paper and not for other operations. In this context, he also relied upon the Madras High Court judgment in the case of M/s. Computer Graphic (P) Ltd. v. Collector of Customs in Writ Petition No. 1596 of 1988 decided on 8-12-1989 wherein the Court had rejected the arguments that when out of the four operations for which the licence is applied for, the same is granted only in respect of one, it should be taken that the application is pending in respect of the balance. The Court observed that when the licensing authority had confined the grant of licence to one of the three items, with reference to which the application was made, the only inference possible is that the application has been rejected with reference to the other two items. Therefore, it is clear that they did not have a valid licence under I.D.R. Act. The learned DR also countered the submissions of the appellants that they are not a factory as defined under the I.D.R. Act by pointing out that the number of workers in the factory and precincts thereof is to be considered and it has not been shown that in such a context, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessity once the offence is held to be established. The Delhi High Court, while dealing with the case law reported in 1987 (29) E.L.T. 753 had clearly observed that in levying a redemption fine, it should be ensured that the importer does not enjoy a bonanza by way of illegal import. The redemption fine in this case with reference to the value of the goods works out to only about 5% and is, therefore, reasonable. So is the personal penalty, having regard to the facts and circumstances of the case and these do not, therefore, require any modification in the department s opinion. 17. Shri G.L. Sanghi, Sr. Counsel appearing for the intervener M/s. Hindustan Photo Films (HPF) submitted that the vital interest as well as the capacity of HPF to assist the court in the present proceedings has been recognised by the Division Bench of the Delhi High Court between the same already reported in 1989 ECC Vol. 24 page 1 which was confirmed by the Supreme Court by dismissing the Special Leave Petition against this order of the Delhi High Court by an order dated 29-8-1989. The Division Bench of the Delhi High Court in their judgment dated 8-5-1989 also acknowledged the fact that presence of HP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of IDR Act then they should have in terms of Rule 19A of Registration and Licencing of Industrial Undertaking Rules, 1952 given a notice and no such action has been taken by M/s. NPL. He further referred to Rule 3 of the same Rules which relates to application of Registration of an existing industrial undertaking and also for the separate provision under Rule 7 of the Rules relating to application for licences for establishment of new undertaking. The learned Sr. Counsel submitted that in view of the provisions of IDR Act and Rules thereunder any licence or registration in respect of any scheduled industry can only be granted by the authority of the Central Government and the registration obtained by M/s. NPL from the U.P. State authorities as an SSI unit will not be relevant for the purpose of industrial licences or for considering M/s. NPL as actual users (industrial) under the input policy. Since M/s. NPL had no industrial licence or COB licence in respect of the goods imported they cannot be actual users (industrial) and they cannot also import the goods under OGL. Even as regards the claim that the number of workers employed was less than 50 the evidence by way of returns un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dice before the Supreme Court and can be modified or altered only by the Appellate Court, namely the Supreme Court. 19. On the aspect of the mis-declaration of the goods, the Sr. Counsel argued that the statute itself makes a distinction between jumbo rolls and cinematographic films. The duty leviable on jumbo rolls is much more than that of cinematographic films. The Standard Weights and Measurement Act and Rules framed thereunder are not applicable to the goods in question as that Act is applicable only to finished consumable goods. The learned Sr. Counsel also submitted that in view of the law laid down by the Supreme Court in the Union of India v. Godrej Soaps -1987 SC 175 M/s. NPL cannot clear cinematographic films which are canalised items even on additional licence. 20. In reply Dr. Devi Pal reiterated that an order of remand is not final and that in this case in its order of remand the Tribunal had merely expressed certain views which were to be borne in mind while readjudicating the case as directed by the Tribunal. The same Bench can also take a different view for cogent reasons and also if the earlier decision is contrary to law another Bench can differ from it. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) Where in pursuance of an order under sub-section (1) or sub-section (2) the adjudicating authority or any officer of customs authorised in this behalf by the Collector of Customs, makes an application to the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Collector (Appeals), as the case may be, as if such application were on appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 129A shall, so far as may be, apply to such application." 22. The Board had called for and examined the records of the proceedings leading to the Collector s order dated 31-1-1989 to satisfy itself about the legality and propriety of the said order and in its direction after examining the records the Board found as follows :- The Board is, therefore, satisfied that the order of the Collector permitting import of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NFDC can import them. After considering the evidence, there is no doubt in our mind that what the respondents imported were jumbo rolls amLnot are cinematographic films. (Emphasis supplied) Thereafter the Tribunal gave a further finding on the second issue and came to the conclusion after considering the arguments of the learned JDR for the department and those of the learned Counsels for M/s. NPL and HPF that the definition of actual user (industrial) in the Import Policy requires that the unit must be an industrial undertaking irrespective of the scale of operation and in this context observed that if it is the claim of M/s. NPL that they are not industrial undertaking because of not being a factory in terms of IDR Act then they are ab initio shut out from claiming OGL, not being actual user (industrial) as defined in the policy. In this context the Tribunal also referred to the argument of M/s. NPL that they are not a factory and as a consequence did not need a licence under IDR Act observing that the Tribunal did not have any data before it to verify the statement. But the Tribunal observed, however, that need not stop us and proceeded to give the finding with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may frame issues and refer them for trial to the court whose decree is appealed from. We have already seen that the remand order of the Tribunal was one in disposal of an application for review under Section 129D(1) of the Customs Act for determining certain specific issues arising out of an adjudication order of the Collector flowing from the exercise of powers in this regard by the Central Board of Excise Customs under that section and the Tribunal by its order of 14-8-1989 disposed of the application by giving its findings on the points raised therein. Therefore, the observations made by the High Courts in respect of cases under Order 41 Rule 25 may not be appropriate in the context of such an application under Section 129D(1) of the Customs Act and its disposal by the Tribunal in terms of Section 129D(4) of the Act. On the other hand, even under the CPC in respect of a remand order under Order 41 Rule 23 the Allahabad High Court in the case reported in AIR 1968 All. 126 Kuber Singh v. Digvijay Singh had observed The order of the remand passed by the High Court in the above second appeal was appealable and hence, any finding recorded or direction given in the second appeal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a coordinate Bench of the same High Court should have tried to sit in judgment over a decision of another Bench of that Court. It is regretable that the learned judges who decided the latter case overlooked the fact that they were bound by the earlier decision. However, if they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision. To the same effect further is the observation made by the Supreme Court in the case of Ujagar Prints v. U.O.I. -1987 (27) E.L.T. 567 (SC) = 1987 (10) ECR 640 wherein the Supreme Court observed Judicial discipline requires that a Bench of two judges should not disregard the decision of a bench of three judges but if the bench of two judges is inclined to disagree with what has been said by the Bench of three judges on the ground that it does not represent the correct law on the subject the case should be referred by the bench of two judges to a larger Bench. It is in this context we find relevance in the case law cited by the learned D.R. in the case of Paras Laminates v. CEGAT - 1990 (45) E.L.T. 521 (Delhi). Paras 11, 12 and 13 of that decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decorum and propriety. This doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions and enables an organic development of the law, besides providing assurance to the individual as to the consequences of transactions forming part of his daily affairs. 13. In the present case, the order of the two Judges Bench is untenable for two reasons : Firstly, when it had been brought to their notice that three Judges Bench of the same Court has decided the same question of interpretation of a particular tariff item, it was their duty to have followed the same even if they had formed a different view. Secondly, when the earlier case of Bakelite Hylam was under challenge in the Supreme Court, it was all the more proper for that bench to have waited the final verdict and not recommended the constitution of a larger Bench." In this context it is further to be borne in mind that M/s. NPL have also filed an appeal before the Supreme Court against the very same findings of the Tribunal in its order of remand dated 14-8-1989 wherein the same arguments, as to the correctness of the declaration and eligibility for import of the goods under OGL, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector wherein they had contended that the Tribunal s order of remand was limited to two points only whether the import was valid under OGL and whether there was any charge of misdeclaration by the importer. Therefore, the appellant cannot now, in our opinion, put forth the contention that the findings on these aspects by the Tribunal in its order of 14-8-1989 were not final and that the present Bench even as a coordinate Bench will be free to take a different view. 26. Several submissions have also been made before us relating to the eligibility or otherwise of the goods imported under the Exemption Notification. However, these were not points to be determined in the application before the Tribunal filed in pursuance of the directions by the Board under Section 129D(1) of the Tribunal and the remand order did not cover this issue. The Collector of Customs, Rajkot order passed in pursuance of the remand order by the Tribunal is in terms only on the illegality of the import and on misdeclaration and consequential penalty on the appellants. His findings on the eligibility to exemption are mere reiteration of his findings in the first order passed by him on 31-1-1989 which was sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I of List 8 Appendix 6 of the Policy and in that Appendix 6 goods are allowed only to actual user (industrial). A further perusal of the photo-copy of the additional licence No. 3285156 dated 4-8-1988 also shows against the column Class of importer actual user (RE) . From this it is clear that even the question of acceptance or otherwise of the additional licence produced would arise only if it is accepted that M/s. NPL can be held to be actual user (industrial). The Tribunal had already found that they are not. We also find that the Collector s finding in this regard is supported by para 95(2) of the Handbook of Procedures relating to Import Export Policy April 1988-1991 under heading Payment to suppliers which is reproduced below : 95(1) When goods are to be imported under an Open General Licence, authorised dealers in foreign exchange have been permitted to open letters of credit or make remittances to cover the imports on their being satisfied that the goods ordered are covered by the Open General Licence. (2) With regard to goods not covered by an Open General Licence, no letters of credit can be opened or remittances of foreign exchange made unless the importer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been fixed at Rupees Five Lakhs. Having regard therefore, to the c.i.f. value of the goods and the amount of differential duty involved, the quantum of redemption fine fixed by the Collector appears to us reasonable and it is, therefore, maintained. As regards the quantum of penalty we are of the view that a reduction thereof is called for, for one of the reasons the Collector himself has taken for allowing the option to M/s. NPL of redeeming the goods on fine in lieu of confiscation, namely that the importer has already been directed to pay duty without exemption, and, accordingly we reduce the personal penalty from Rupees Ten Lakhs to Rupees Five Lakhs which will be equivalent to the fine levied on the goods, having regard to the facts and circumstances of the case. The appeal is disposed of accordingly in the above terms. [Assent per : Harish Chander, Member (J)]. - 30. I have perused the order written by my learned brother Shri K.S. Venkataramani, Member (T). I agree with his conclusions. Before I part with this matter, I would like to add my observations. 31. The Tribunal had decided the present matter vide its order dated 14th August, 1989 reported in 1989 (24) ECC 45 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it was not open to the Tribunal to come to a different conclusion to the one arrived at by that very Tribunal earlier without any limitation whatsoever. The mere fact that the second Tribunal may look upon the decision of the first Tribunal as erroneous in law would not justify it in coming to a contrary conclusion or reversing the finding of the first Tribunal. Relevant extract from the Bombay High Court judgment is reproduced below :- .......and, therefore, it seems to us that the mere fact that the second Tribunal may look upon the decision of the first Tribunal as erroneous in law would not justify it in coming to a contrary conclusion or reversing the finding of the first Tribunal. Nor are we satisfied that in order to enable the second Tribunal to depart from the finding of the first Tribunal it is essential that there must be some fresh facts which must be placed before the second Tribunal which were not placed before the first Tribunal. If the first Tribunal failed to take into consideration material facts, facts which had a considerable bearing upon the ultimate decision, and if the second Tribunal was satisfied that the decision was arrived at because of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther limitation upon the power of the Tribunal to revise the decision given earlier by that very Tribunal. The effect of revising his decision should not lead to injustice and the Court must always be anxious to avoid injustice being done to the assessee. If the Court is satisfied that by depriving the assessee of his rights under the later decision in an earlier year the assessee lost an important advantage or lost some benefit which he could have got under the Income-tax Act, then the Court may take the view that departing from the earlier decision leads to injustice or denial of justice and the Court may prevent an Income-tax Authority from doing something which would be unjust and unequitable." 32. In the present appeal before the Tribunal whatever fresh material or evidence was placed, which was not placed before the earlier Bench of the Tribunal, the same has been duly considered and after giving due consideration, my learned brother has come to the conclusion. I do not find that the earlier decision was erroneous or perverse, in any way, and this Tribunal should not differ from the earlier decision and conclusions of the Tribunal. Bombay High Court in the case of Trika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On the question of misdeclaration, elaborate arguments have been advanced on the interpretation of various provisions of Customs Act, relevant notifications, Export Import Policy, etc. But all these arguments should have been or could have been advanced before the earlier Bench. These arguments are not such arguments which arise out of any subsequent provision of law which might have come into existence as a result of any amendment of any of the statutory provision or any judgment having been delivered by some higher forum like Supreme Court or High Court. That is not the case here. It is possible that, perhaps, we would have put a different interpretation and we might have come to a conclusion that there was no misdeclaration. But that would not justify our expressing different opinion than one expressed by the earlier Bench because that was a finding arrived at after hearing both sides and perusing relevant provisions of law and other relevant documents. It is true that on behalf of the appellant, lengthy arguments were advanced that the earlier Bench had simply expressed an opinion and that was not a finding but as rightly observed by Ld. Brother Sh. K.S. Venkataramani, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 15966/1988 in the case of Computer Graphic Pvt. Ltd. v. The Collector of Customs etc. the Madras High Court has held that holding of licence is necessary for such type of manufacturer. 40. I have perused the judgment in the case of State of M.P. and Others v. Nand Lal Jaiswal and Others - AIR 1987 S.C. 251, but at that time, the notification in question was not in existence. The Madras High Court has considered this notification and has held as above. 41. As far as the question of acceptability of additional licence is concerned, only because the appellant had not produced the original additional licence before the Collector should not have prevented the Collector from considering availability of the same. He could have asked for the original to be produced. We could have remanded the matter back to the Collector to examine this aspect in the light of the original additional licence. But then in the present case it would not serve any purpose because as already held by the learned brother Shri K.S. Venkataramani, under provisions of 95 Para 1 and 2 of Hand Book of the Procedure relating to Import and Export Policy 1988-1991, Additional Licence would not be available to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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