9911796707
TMI Blog1991 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... f fine of Rs. 5.00 lakhs and also imposing personal penalty of Rs. 20,000/- on the appellants. 2. Facts of the case are that the appellants are engaged in the activity of ship breaking at Ship Breaking Yard, Alang in Bhavnagar and they hold the SSI Certificate for the activity. They imported a ship for breaking and produced a number of REP licences and additional licences endorsed with flexibility provision available under Paras 177 and 215 of Import and Export Policy 1988-91. However, clearance against the aforesaid licences was objected to by the Department on the ground that the flexibility provision under Para 177 is available only in respect of a single item, which shall not exceed 10% of the overall flexibility and subject to a maxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Paras 175 and 177 refers to the limits laid down for each REP licence and the flexibility permissible in each licence is also based on the FOB value admitted, while issuing such licence. However, the Collector seems to have obtained a clarification from the JCCI E directly, in which the CCI E informed the Collector by a letter dated 29-12- 1988 that the clubbing of the flexibility is available only for import of Non OGL Capital Goods as per Para 179 of the Policy and hence for the purpose of the import of other items, the eligibility for import will be determined with reference to a particular licence only. On this basis, the adjudication order has been passed. He also referred to the REP Circular No. 39/89 dated 6-11-1989 issued by CCI E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons produced by the Ld. Consultant are not directly on this point. REP Circular referred to by the Ld. Consultant no doubt makes it clear that the clubbing facility has been made available to valid REP Licences but this clarification is based on subsequent amendment to the Policy in terms of ITC Public Notice No. 171/ITC/PN/88/91 dated 23-10-1989. Because of the amendment in the Policy changing the condition and also condition for import of ship for breaking listed in Appendix 19 - the list of permissible items under the flexibility provisions, the Policy makers have amended the Policy and the conditions and the benefit can be applied only prospectively and not retrospectively. Hence the order of confiscation and imposition of redemption fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government after considering the representations from the Actual Users (Industrial) have decided to allow import of old ships for breaking by clubbing the flexibility available on valid REP licences and the Collector has also taken note of the provisions contained in ITC Public Notice No. 171 dated 23-10-1989 inserting paras 177A and 215(4)(a) permitting such utilisation of REP licences, but he has held that these amendments could not cover the present import and on that ground ordered confiscation and imposed a redemption fine of Rs. 5.00 lakhs and also imposed a penalty of Rs. 20,000/-. Though we are not suggesting that the amendment carried out in the Policy is retrospective in operation, the fact is not disputed that well before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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