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TMI Blog1993 (2) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... to furnish catalogue/literature of the product and as per the catalogue, the goods were described as 2nd Generation Image Intensifier tube . 2. The appellants had contended before the learned Collector that the goods imported were raw materials and it required to undergo several processes before it is considered to be in ready-to-use condition and without the processes which were to be carried out in India, the goods cannot be used. However, the department on examining the materials was not satisfied. Hence, they were charged for deliberately mis-declaring the goods as Bare Image Intensifier tube for taking the benefit of notification for evading the Customs duty while the goods were found as finished Image Intensifier tube . Hence the party was charged for violation of Customs Act and goods being liable for confiscation under Section 111(m) of the Customs Act, 1962 and penal action under Section 112 of the Act. 3. The appellants had filed their reply and had taken the contention that their unit is a joint venture company with foreign equity formed by M/s. Bharat Electronics Ltd. They had established production and testing facilities for assembly and testing semi-finished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts (Control) Act, 1947 but has granted redemption under Section 125 of the Customs Act, 1962 by levying a confiscation fine of Rs. 10 lakhs. 4. We have heard Smt. Anuranjna K. Singh, learned Advocate for the appellants and Shri B.K. Singh, learned SDR for the Revenue. The learned Advocate has reiterated the grounds of appeal and forcefully argued that the findings given by the learned Collector are not correct inasmuch as, the imported item cannot be straightaway used as a finished product at all. The item has to undergo several processes and only then it will be fit enough to be fitted on sophisticated weapons and the finished goods held in surveillance during night hours by the Defence and Para-Military forces. The supplies have all been made to the Defence Establishments against the order placed by Ministry of Defence. It is her contention that the notification applies to them as the Ministry by their letter dated 5-4-1989, annexed with the Memo of Appeal, has written to the Development Commissioner informing them that the sale to Defence organisation and Government departments by Zone units, which do not require Import licence, will be treated as a GCA export. Therefore, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the diagram at Annexure-w of the paper book. (ii) UT of model XX 1440 is costlier by about Rs. 2,000/- per piece as compared to IIT of model XX 1450. 5. Shri B.K, Singh, learned DR reiterated the findings given by the learned Collector and contended that the appellants are not 100% export oriented unit nor they were exporting the goods after carrying out certain processes and hence, Notification No. 13/81-Cus., dated 9-2-1981 is not at all applicable in the facts and circumstances of the case. He also contended that the Notification No. 206/76-Cus. was not claimed and the same is not being examined by the learned Collector. Even otherwise, the said notification is not applicable in the facts and circumstances of the case. 6. We have carefully considered the submissions made by both the sides and perused the order and also the technical literature and several materials placed before us for consideration. On a careful consideration of these materials, it is very clear that the goods which have been imported, cannot be straightaway utilised as a finished product. There is no dispute that these goods are precision and highly scientific innovation and that there are several proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be fixed by the said Board, all articles manufactured wholly or partially from the goods for the period stipulated by the Board or such extended period as may be specified by the said Board. There are other conditions also like the exporter executing the bond as may be prescribed by the Asstt. Collector of Customs binding himself to fulfil the export obligations and conditions stipulated in this notification and in or under the Import Export Policy for April, 1985 - March, 1988 published under the Ministry of Commerce, Public Notice No. 1/ITC (PN) 85-88, dated 12th March, 1985. There is exemption in this notification in clauses 7 to 11 of para 1 of the notification. On a perusal of these conditions also, it is clear that the same are not applicable to the facts of the case. Para 2 of the notification also exempts all sale to ONGC, Gas Authority of India or Oil India Limited on their producing a certificate from an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Petroleum and Natural Gas to the effect that the articles produced by the said undertakings are required to be supplied against a global tender to the ONGC, Gas Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities with regard to the applicability of the Notification No. 206 / 76-Cus. The appeal is allowed by remand. 9. [Order per : P.C. Jain, Member (T)]. - I have carefully perused the order proposed by learned brother, Shri S.L. Peeran, Judicial Member but I regret that I am unable to agree with the conclusions reached by him. I, therefore, pass the following order : 9.1 Facts of the case have already been set out in the learned Judicial Member s order and I would not, therefore, recapitulate them again in my own order. 9.2 The appellant company is a hundred per cent export oriented undertaking and holds a letter of intent from Ministry of Industries. The appellant company has imported the goods termed as Bare Image Intensifier Tube (BARE IIT) to be converted by them into IIT after undertaking certain processes in their factory. 9.3 The adjudicating authority has held that the imported goods are the end-products themselves and therefore, the appellant company has mis-declared the goods. The goods have, therefore, been confiscated under Section 111(m) of the Customs Act. Benefit of Notification No. 13/81-Cus., dated 9-2-1981 has also been denied for the reason that what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the lower authority is available on record. I, would, therefore, remand the matter to the adjudicating authority to examine whether the other conditions of the Notification No. 13/81-Cus., dated 9-2-1981 are fulfilled by the appellant or not in the light of the submissions to be made by them or any evidence to be adduced by them. 12. However, I agree with the learned brother that the applicability of Notification No. 206/76-Cus. be also examined by the lower authority. Dated : 11-2-1993 Sd/- (R.C. Jain) Member (T) 13. Appeal is disposed of in the above terms. In view of the above orders of the Members comprising the Bench, following points of difference have arisen :- (i) Whether in the facts and circumstances of the case and on the finding that the goods imported are different from the end-product to be manufactured by the appellant, confiscation of the imported goods under Section 111(m) is justified and consequently whether any redemption fine to the tune of Rs. 2 lakhs is liable to be imposed. (ii) Whether in the facts and circumstances of the case question of examining the satisfaction of other conditions of Notification No. 13/81- Cus., dated 9-2-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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