9911796707
TMI Blog1993 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... Consultant for the appellants pleaded that the machinery has been confiscated for 2 reasons viz. (i) second-hand machinery could not be imported as per the policy applicable in 1990-93 under which the import of second-hand machinery is banned as against the appellants plea and (ii), even under the policy for the year 1988-91 the goods imported have to be considered as computer based system the import of which could not be allowed. The learned Consultant pleaded that the policy applicable to the appellants was for the year 1988-91 for the reasons that during currency of the policy for 1988-91 firm order was placed and the contract was registered with the Banks by 28-2-1991 and the appellants could import within one year of the said registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter head of Typesetting Equipment Company USA, without any covering letter and carries the words Proforma Invoice bearing the date 15th Feb., 1990. This bears the signature of one Dr. Patel for Typesetting Equipment Company, without any initials of the person. Against the Heading terms at the bottom of the contract, it is shown - Letter of Credit to be established in favour of Typesetting Equipment Company and the time for shipment is mentioned as 120 days after the letter of credit is established with a further period of 15 days negotiations. This shows that this so-called contract will be operational only after the LC is opened and the period of shipment should be determined only on that basis. This proforma invoice in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in any other statute, the term firm contract has to be given a meaning in the context of the contract entered into and the policy. In our view, the firm contract had to be such as would entail any pecuniary obligation cast or if there is cancellation of the contract a degree of penalty for not complying with the contract would be the result. We had asked the learned Consultant during the hearing whether in the contract entered into by the appellants there was any clause or any term which would entail any penalty on the appellants in case the goods were not imported consequent on the cancellation of the so-called contract. He pleaded that there was no such consequences that would have followed in case the appellants did not operate int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omputer/computer based system was not permissible for import under Open General Licence (OGL). The appellants plea is that they have imported only Phototype setting system which is computerised in nature and the same cannot be considered as a computer system. In this connection the learned Consultant referred us to the definition of the computer system as given in the policy for the year 1988-91 which for convenience of reference is reproduced below : Computer system - means all types of electronic data/information processing equipment, their peripheral equipment, their interface equipment, their data communication equipment, terminals, modems, electronic data collection and data preparation equipment and connected on line control syste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer in this regard except to say that the framers of the policy had included the same for no apparent reason. We observe that the second-hand computer/computer based system is not permitted for import. What has been imported is a Phototype setting system and it has the computer incorporated in it. This system has to be considered as a computer/computer based system and is, therefore, covered by the prohibition as set out in Appendix 6 of the Policy for import under Open General Licence (OGL). We, therefore, find no force in the plea of the appellants in this regard also. 6. No specific plea has been taken that the redemption fine levied is excessive nor any circumstances have been brought to our notice which would warrant reduction in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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