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TMI Blog1990 (10) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to by the department, we are satisfied that the applications involve consideration of the same issue and hence they were heard together and proposed to be disposed of by this common order. 3. Shri K.M. Mondal, the Ld. SDR, pointed out that the question of law required to be considered in both the applications is as follows: 1. The provisions of Para 1 of O.G.L. as reproduced as annexure to Appendix 21 of I.T.C. Policy of AM 1983-84 do not permit import of second-hand Capital goods. The provisions are to be read with the provisions of Para 232 of the relevant Policy and Para 5(3)(ii) of the Import (Control) Order, 1955. 4. On questioning, he fairly conceded that neither the provisions of Para 232 of the Import Policy AM 1983-84 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Trade Zone is squarely within the purview of Appendix 21 and it is immaterial to look into whether the item figures in Appendix 2 or not, so long as there is no such restriction mentioned in Appendix 21 or anywhere else. The issue now sought to be raised by way of reference to Para 232 of the Import Policy AM 1983-84 and Para 5(3)(iii) of the Import (Control) Order, 1955 was not the one which was either argued before the Tribunal or covered by the adjudication order. This is a new issue sought to be raised by way of Reference Application. In this context, he cited the decision of the Supreme Court reported in 42 ITR 589 (SC) Commissioner of Income Tax v. Scindia Steam Navigations, where the Supreme Court has clearly held that when a ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector has moved the Reference Applications by inviting attention to provisions of Para 232 of the Import Policy AM 1983-84 and the provisions of Para 5(3)(iii) of Import (Control) Order, 1955, only at this stage. Even the adjudication order does not make any reference to them. This legal position was not even argued before this Bench. Hence the issue which was considered, as rightly pointed out by Shri Ajit Yadav, the Ld. Company Secretary on behalf of M/s. Hindustan Lever Ltd., was whether Appendix 21 permits imports of Capital goods by the units in the Free Trade Zone irrespective of whether these goods are figuring in Appendix 2 or not and this was the question posed before this Bench and the Bench has given the finding on that issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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