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TMI Blog1993 (3) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under Section 111(d) of the Customs Act, 1962. The appellants were called upon to show cause against proposed confiscation and penalty for alleged contravention of the Import Policy AM 1988-91 as import of the machines was permitted under OGL only to actual users while it appeared that Agarwal Udyog was a fictitious firm and import was effected by unknown persons with intent to trade in the goods. The second appellant replied on 3-9-1990 that they were a unit with provisional SSI Registration dated 16-3-1988 to commence the manufacturing activity of automobile gears and that the address given in the SSI registration certificate was the address of the proprietor and it belonged to his father, Shri Ramnath Chawla who had since disinherited him from the family business and property and that his application for further extension of the validity of the certificate was pending with the Department of Industries and he enclosed the relevant correspondence pertaining thereto. He also requested for a personal hearing which was granted. The appellants request for adjournment on the 2nd occasion was turned down as unjustified and the adjudication order was passed, confiscating absolutel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1981 (8) E.L.T. 235 (Bom.) - Lokesh Chemicals 3. 1982 (10) E.L.T. 171 - Bombay Chemicals v. U.O.I. 4. Order No. 327/89-C, dated 18-7-1989 - Wimpex Dyechemicals v. C.C. 5. 1990 (49) E.L.T. 190 (Bom.) - Bombay Chemicals v. U.O.I. 4. The learned Counsel further submits that the adjudicating authority has erred in holding that the Ist appellant firm and the 2nd appellant are non est appellant No. 2 has received the s.c.n. though belatedly and has appeared in person before the authorities at Kandla on 10/11 July, 1990 to collect it, and has replied to the s.c.n. on 3-9-1990, enclosing copies of correspondence exchanged with the Department of Industries for further extension of validity, which will repel the Department s stand of non-existence of the Ist appellant. The next contention of Mr. Rawal is that in order to be treated as Actual User (Industrial) the only requirement is existence of registration certificate at the time of shipment of goods as per Para 86 of the Handbook of Import Export Procedures for 1988-91. This aspect has been dealt with by the Hon ble Calcutta High Court in the case of Collector of Customs v. Priyanka Exports (1989 (41) E.L.T. 195. The import is va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorised premises (or . . .) (2) Actual User Condition shall be construed accordingly. (3) Actual User (Industrial) shall mean an Industrial Undertaking . . . . . . .engaged in the manufacture of any goods for which it holds a licence or registration certificate from the appropriate Government Authority wherever applicable. 7. As per the provisions of the Import Export Policy, importer claiming clearance under OGL must be in possession of valid registration certificate at the time of clearance of the goods, particularly according to Paras (1) (2) of the conditions governing Imports under OGL. The importer herein was found upon verification to be non-existent. Verification about the existence of the 1st appellant firm at the address of consignee of 5 import consignments, at B-1/11, Paschim Vihar, New Delhi revealed that no such firm existed at that address and the premises was found to be the residence of one Shri Ram Nath Chawla (father of the 2nd appellant) who furnished a statement that the house is totally residential and is not being used for commercial purposes and he is not concerned in any manner with the firm. The partner of the Steamer Agent M/s. Velji P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the address of the consignee i.e. B-1/11, Paschim Vihar, New Delhi and the premises was found to be the residence of the father of the second appellant. It is also not the case of the appellant that the registration certificate continued to be in force beyond the period of one year from 16-3-1988 i.e. date of its issue. Even at this stage, ld. Counsel has not been able to satisfy us that the validity of the registration certificate was subsequently extended. We, therefore, see no reason to interfere with the finding that the first appellant firm does not exist in the eye of law. 9. We are not able to accept the contention of the ld. Counsel for the appellant that the appellants are (Actul Users Industrial) in terms of Para 6(3) of the Import Export Policy 1988-91. The case law cited by the ld. Counsel in support of his proposition is distinguishable on the facts. In the case of Bombay Chemicals v. Collector of Customs - 1990 (49) E.L.T. 190 (Bom.), the exemption under the notification dt. 1-3-1968 was denied by the customs authorities on the ground that the imported chemicals i.e. High Boiling Tar Acid are not used for agricultural purposes . The Bombay High Court held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us is a requirement under Paras 1 2 of the conditions governing imports under OGL. The contention of the ld. Counsel that the only requirement is existence of registration certificate at the time of shipment of the goods in order to be treated as Actual Users Industrial, is, therefore, not correct. 11. The other submission of the learned Counsel that the opportunity of hearing was not granted before the adjudicating authority is also devoid of merits. As recorded in Para 7 of the impugned order, a personal hearing was granted to the appellants on 19-10-1990 and a second hearing was fixed on 12-11-1990, at their telegraphic request. A letter dated 1-11-1990 was received from the appellants in the office of the Collectorate on 12-11-1990 expressing inability to attend the personal hearing in view of the critical law and order situation in the country and consequent request for adjournment. Since the adjudicating authority was of the view that the adjournment request was not based on valid grounds, he proceeded to adjudicate the case on the basis of the available records. We are, therefore satisfied that sufficient opportunity was afforded to the appellants which was, however, not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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