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TMI Blog1990 (1) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... does not arise. The appellant had contended that the goods imported are spares, but the learned Collector did not dispute in this order that the goods are not spares. 3. In appeal No. C-75/86, the appellant directed this appeal against the order passed by the learned Collector of Customs (Appeals) in No. Cal-Cus/2451 dated 25-10-1985. The original order in this case was passed by the learned Deputy Collector of Customs in order No. S 33 (VII) 51/85A dated 25-3-1985. The learned Deputy Collector in that case held that the imported goods which were T.V. colour picture tubes valuing Rs. 85093/63 are not covered by the additional licence. He was of the opinion that the goods in question are covered by appendix 8 of 1983-84 policy. The contention of the appellant was that the subject goods imported as spares do not appear in appendices 3, 4, 15 and 30 of AM 1984 policy and, therefore, it was valid for importation under para 186(8), of 1984 policy, but the learned Deputy Collector held that they fall under Appendix 8. 4. In appeal, the learned Collector (Appeals) held that serial No. 4 of Appendix 10 does not provide for clearance of an item falling under appendix 8 for which there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and since the policy applicable in all these cases is 1983-84 Import Export Policy, and since the point involved in all these appeals are the same, I propose to dispose of these three appeals by a common order. 7. The learned advocate, Sri S.K. Bagaria appeared for the appellants and Sri M.N. Biswas, SDR appeared for the department. 8. It was the contention of Sri Bagaria that the appellants are the actual user of the said T.V. picture tubes. It was also his contention that in all these cases the goods were sold to the appellants on high seas sale basis by M/s. East India Goat Skin Co., who is an export house. In all these cases the clearance of the consignments were claimed by the appellants under additional licence which were valid for import of items under paragraph 186 of the Import Export Policy 1983-84. It was also contended that there was a condition in the said import licence that the imported materials shall be disposed of to eligible actual users. The learned advocate contended that paragraph 186(8) of the import policy allows import of raw materials, components, consumables and spares excluding items covered by appendix 5 placed on OGL for actual users (industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No. C-75/86-Cal and C-74/86-Cal, this fact was not disputed by the learned Collector (A) it was only disputed in the order relating to appeal No. C-116/86 by the Collector even though the same was not either disputed by the original adjudicating authority i.e., the Deputy Collector. It was also his contention that several consignments of T.V. picture tubes were allowed in the past by the Customs authorities. He also contended that up to 1982-83 policy, the canalized items were not excluded from paragraph 186(9) and in the import policy of 1985-88 they are specifically allowed. He also brought to my notice that in the import policy of 1985-88, colour picture tubes are included in Serial No. 565(5) of Appendix 6, List 8, Part I. Therefore, he contended that during the policy period beginning from 1985 onwards, the Government has allowed import of the said colour T.V. picture tubes under OGL by making specific provision. Even otherwise it was his contention that these importations were bona fide, and the appellant is an actual user. He also contended that the designated public sector undertaking which is the Electronic Trade and Technology Development Corporation Ltd (ETTDC) is mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents (raw materials and consumables) are allowed to be imported against REP licence as are placed on OGL for actual users (industrial). In Part II of List 8 of Appendix 10 of the Policy book that is to say the items sought to be cleared against REP licence must appear in List 8, Part II appended to Appendix 10 relating to import under OGL. He, therefore, contended that for export houses/trading houses the items of import are limited to those mentioned in List 8, Part II of Appendix 10 and since picture tubes does not appear in the said list and the said Appendix 10 and since the importation of items of components included in Appendix 8 related to canalized items they are specifically excluded from OGL for actual users (industrial) vide Appendix 10, Serial No. 1 of the Policy and Para 186 (8) allows only such components as are placed on OGL and hence the impugned orders are in accordance with law. 14. Alternatively, he contended that, even if picture tubes are spares for colour T.Vs. as distinct from capital goods, the same could be considered for import against the special licence only in terms of Para 186 (9) of the Policy book. According to this sub-para items appearing in Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re tubes are spares within the meaning of the Import Policy 1983-84, or in the alternative whether they are components of colour T.Vs.; (ii) In view of the findings on Point No. 1, whether the import of the colour T.V. picture tubes are not covered under the Additional Licences produced by the appellant in the above cases, and whether their import is not permissible; (iii) Whether there is any ambiguity in the interpretations of the provisions and whether the benefit of doubt, if any, should go in favour of appellant and (iv) Whether there are any grounds to interfere with the orders of the confiscation of the T.V. tubes in question and the imposition of redemption fine in this behalf. Point No. (i) The term spares mentioned in the 1983-84 Import and Export Policy as per Para 5 (11) which reads as follows : Spare means a part of sub-assembly or assembly for substitution, i.e. ready to replace an identical similar part or sub-assembly or assembly, it becomes faulty or worn out, and includes an accessory (or attachment) in the same regard". The term Part is defined in Para 5(15) as follows : Part means an element of a sub-assembly or assembly, not normally use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 185 (1) Export Houses will be allowed to import OGL items against REP licences issued in their own name or transferred to them by others. This facility will be available to them for the import of: (a) Capital Goods (listed in Appendix 2). (b) Raw materials, components and consumables which have been placed on Open General Licence for actual users (industrial), in Part II of List No. 8 in Appendix 10 of this Book, as per conditions laid down. (c) Spares (excluding items covered by Appendix 5) which have been placed on Open General Licence for Actual Users (Industrial) as per conditions laid down. (2) REP licences against which Export Houses wish to take advantage of the facility provided in sub-para (1) above shall be non-transferable. (3) Export Houses who wish to take advantage of this facility of import of OGL items should get the licences concerned endorsed by the licensing authority as under :- This licence will also be valid for import of OGL items under Para 185 of Import Export Policy, 1983-84 (Vol. I) subject to the conditions laid down and shall be non-transferable". 19. It is thus seen that in terms of Para 185 of the relevant policy only such component ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ullah for the petitioners contends that this course sought to be adopted by Shri Natu for the respondent is not open to him. Relying on an earlier decision in A.I.R. 1952 Supreme Court 16, a five judge Bench has held in A.I.R. 1978 Supreme Court 851 Mohandra Singh v. Chief Election Commissioner that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned, and cannot be supplemented by fresh reasons in the shape of affidavits or otherwise. Otherwise an order which is bad in the beginning may by the time it comes to Court on account of a challenge get validated by additional grounds later brought out. Shri Hidayatullah has cited two more cases of this Court (both Division Bench decisions) where the aforesaid decision of the Supreme Court has been applied to orders passed by the statutory authorities under the Central Excises and Salt Act. See 1980 (6) E.L.T. 258 - Bush (India) Ltd. v. Union of India and 1983 (14) E.L.T. 2289 - Dunlop Rubber Company v. M. V. Raghavan Ayer. Shri Natu did not profess to controvert the submission advanced by Shri Hidayatullah and in our opinion rightly. It is thus clear that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as per para 186(9) and that an importer cannot be allowed to ignore this specific provision. Hence for the above said reasons this argument of the learned advocate for appellant cannot be accepted by me. 22. The next contention of the learned advocate is that the appellant is entitled to import the subject goods under para 186(8) of the relevant AM 1983-84 policy. It was contended that/under para 186(8) of AM 83-84 policy import of raw materials, components, consumables and spares (excluding items covered by appendix 5) placed on OGL for actual users (industrial) are allowed. The said T.V. picture tubes being admittedly not covered by appendix 5 are therefore permissible to be imported. It was also contended that since para 186(8) refers to spares placed on OGL for actual users, appendix 10 becomes relevant. It was therefore contended that serial no. 4 of appendix 10 covers permissible spares, that is, items other than those included in appendices 3, 4, 15 and 30 and since T.V. picture tubes are not covered by any of the above appendices mentioned above their import is permissible. In this regard it is convenient to quote para 186(8) of the relevant policy which reads as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es against which export houses wish to take advantage of this facility of import of OGL items shall be non-transferable. It is thus seen that under OGL spares can be imported as per conditions laid down. Appendix 8 enumerates a list of items, import of which is canalised through public sector agencies. Item No. 6 of the above appendix reads as follows": - Electronics Trade Technology Development Corporation (5) Calculator chips (6) T.V. Picture tubes (CRTS for television sets (all types)". It is thus seen that import of T.V. picture tubes are canalised through Electronics Trade and Technology Development Corporation and if para 186(8) is read along with para 185 and this appendix 8 item 6, it becomes clear that import of the subject goods (T.V. picture tubes) are not permissible under O.G.L. This becomes clear on a reading on para 186(9) which reads as follows : 186 (9) Additional licences will also be valid for import of spares of the items falling under following Heading Nos. of Schedule I to the Imports (Control) Order 1955: - 84.12 84.51 85.18 84.15 84.52 85.19 84.22 84.53 85.20 84.24 84.54 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t actual users both industrial and non-industrial will be permitted to import under open general licence, permissible spares which are required by them for operation and maintenance of the capital goods, including accessories, ancillary equipment, control and laboratory equipment and safety appliances installed or in use by them as on 1st April, 1983. T.V. picture tubes in this case are not imported for any of the above purposes. Hence a combined reading of paragraph 186(8) which refers to para 185, wherein spares can be imported only as per conditions laid down, and if item 4 of Appendix 10 referring to Permissible spares is read along with paragraph 58, in Chapter 9 which refers to the various provisions of import of spares and particularly of permissible spares , it is clear that the import of colour picture tubes is not permissible under the relevant policy. In view of the above discussions I am of opinion that the colour T.V. picture tubes are not covered under additional licence and point no. 2 is answered accordingly. Point No. 3 : 25. In view of the detailed discussion made by me in the paragraphs above and the reasoning thereon, I am of opinion that there is no am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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