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TMI Blog1992 (5) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... only up to 31-3-1988, they did not qualify for being considered as Actual User (Industrial) on the date of importation of, the subject goods, under the conditions prescribed under the OGL, the Additional Collector ordered confiscation of the goods under Section 111(d) of the Act, imposed a penalty and ordered release on payment of fine in lieu of confiscation. On appeal, the Tribunal set aside the order and remanded the case to the Additional Collector for fresh adjudication with a direction to take into consideration letter No. 31(345)-P(88)-Elect, dated 28-9-1988 from the Development Commissioner (Small Scale Industries) to the Director of Industries, Delhi extending the validity of the letter of approval for the manufacture of mini computers/micro processor based systems by the respondents up to 31-3-1989, By his order dated 1-11-1989, the Additional Collector adjudicated the case afresh and accepted the respondent s plea that, in view of the extension of the validity of their letter of approval by the Development Commissioner, they should be treated as Actual User (Industrial) on the date of import of the subject goods. Consequently, he allowed clearance of the goods under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that certain types of ICs, numbers of which are clearly indicated in the examination report, were imported by the importers. In the aforementioned shipping bills, packing list, and invoice it is indicated that the same ICs bearing the same Nos. were re-exported. The importers had taken the plea that they had done testing and re-packing in their manufacturing premises. This plea of the importers appears to be incorrect as the goods under import were manufactured by reputed manufacturers of the world in the supervision of experts and the item is sold only after complete testing. Further, re-packing of the goods or testing of certain items cannot be considered as manufacture and conducting of testing (if any) and re-packing within the premises of the importers would not entitle them to any benefit as actual users under the Import and Export Policy, 1988-91." 5. The prayers made in the appeal are that the impugned order may be set aside, the respondents may be held as not Actual User (Industrial) and the goods imported by them be denied release under the OGL, suitable fine and penalty be imposed on the respondents and such other order/direction may be passed as the Tribunal may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y took into the letter dated 29th Sept., 1988. Having done that, the Additional Collector has complied with the direction of the Tribunal and such an order cannot be questioned by the Board. 10. Another point taken in die Cross Objection filed by the respondents is that under Section l29D(l) of the Act, the Board can deal only with the points arising out of the order of the Additional Collector. A point not raised before the Additional Collector and not considered by the Additional Collector cannot be sought to be raised out of the order of the Additional Collector. This is a settled position in law. The point now taken by the Board in their order dated 23-7-1990 that the respondent s do not have necessary infrastructure is not a point either raised in the show cause notice or anywhere else during the entire proceedings before the Additional Collector. Hence the said point cannot be raised by the Board at this stage. 11. Yet another point taken is that in terms of Section 129D(1) they Board is entitled only to look into the record of the adjudicating authority. It cannot look into extraneous material. It cannot travel beyond the record of the adjudicating authority. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner initiated revisional proceedings after he received a letter from the Assistant Commissioner, forwarding the report of the Sales Tax Officer, Enforcement Branch, who had seized the account books, etc. of the opponent-company, after the Appellate Commissioner passed an order-in-appeal, reversing the order of the Sales Tax Officer and holding the opponent to be liable from 1st April, 1960. The Tribunal was, therefore, right when it opined that the Deputy Commissioner has, for purposes of initiating revisional proceedings, relied on materials which were not part of the matter before the taxing authority. The Dy. Commissioner, in other word, did not restrict himself to the record of the proceedings before invoking revisional powers... .......The Tribunal was, therefore, justified in holding that the Dy. Commissioner had acted beyond his jurisdiction in initiating revisional proceedings on certain materials which were not part of the record of the Assistant Commissioner of Sales Tax." , (b) Deputy Commissioner of Agricultural Income-Tax Sales Tax, Quilon v. Dhanalakshmi Vilas Cashew Co.; State of Kerala v. Vijay a Produce Agency - 1969 (24) STC491SC.. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise oat of the order of the Additional Collector and was, therefore, outside the purview of the proceedings initiated under Section 129D(1). He went on to say that the point not raised and not considered by the Additional Collector cannot be taken up in these proceedings. He cited two decisions of the Supreme Court in the case of Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd. - AIR 1961 S.C. 1633 at page 1645, and in the case of (R.K. Palshikar (HUF) v. The Commissioner of Income-Tax- AIR 1988 S.C. 1305 at page 1305, in both of which it was held that if a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the finding given by it. 15. Shri Sridharan took the next argument that non-satisfaction of the Actual User condition being, in any case, a post-importation condition, the Customs authorities were not concerned with it. He cited the decision of the Tribunal in the case of Audio Vision Electronics v. Collector of Customs, Madras [1987 (31) E.L.T. 796] and read out from para 6 as under: Imported goods cannot be confiscated on the assumption th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Customs, IGI Airport, New Delhi. 20. On the question that since the goods were not available for confiscation, the direction of the Board to file the appeal to the Tribunal for determining the fine and penalty to be imposed was not capable of being implemented, he cited the decision of the Tribunal in the case of R.K. Industries v. Collector of Customs Central Excise -1989 (39) E.L.T. 316 (Tri.), in which it was held that an order passed under Section 47 of the Customs Act does not oust the jurisdiction of the customs authorities to confiscate such goods if later on it is found that the conditions under which goods were permitted to be imported were not complied with. He submitted that there was one more decision on this point and this was the decision of the Supreme Court in the case of Jacsons Thevara v. Collector of Customs Central Excise -1992 (61) E.L.T. 343 (S.C.) = (1991) 32 ECC 89 (S.C.), in which also it was held that goods were liable for confiscation under Section 111(O) and penalty was also leviable after clearance of the goods. In this view of the matter, argued Shri Bhushan, action could be initiated under the law even when the goods were not avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act) to show that the reversionary authority has to confine itself to the record of proceedings and cannot travel beyond it. He has also explained to us how the question of re-export of the goods was not a point at issue before the Additional Collector and how the Board had committed an error in directing the Collector to file an appeal to the Tribunal for determination of this question. That this question also does not arise out of the proceedings before the Additional Collector, who passed the impugned order, is also quite clear. Thus, on both these points, it is evident that in directing the Collector to file an appeal to the Tribunal, the Board had gone beyond the jurisdiction vested on it under Section 129D(1). On this short point alone, the appeal is ab initio beyond jurisdiction and is liable to be rejected. 25. The Ld. S.D.R. s point that the import and export were linked may be true, so far as the conditions of the OGL against which the goods were imported is concerned. But the Additional Collector had initiated proceedings only in relation to the import part of the total obligation and had not gone into the question whether the conditions of export had been compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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