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TMI Blog1994 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are represented by learned Counsels and Consultants etc. and initially Shri P.C. Kothari, the learned Counsel for appellant Arjunan in Appeal No. C/388/92 led the other Advocates and Consultants and made submissions. Most of the submissions of Shri P.C. Kothari were adopted by other parties. In some cases, the Consultants and Advocates added few more points. The goods involved in almost all the cases are only Air Conditioners except in few cases such as Appeal No. C/91/92 - P. Natarajan where in addition to Air Conditioners, Video camera is also involved. Likewise in the case of appellant M. Subramanian (C/208/92) in addition to Air Conditioner, TV, VCR, Video Camera, Sony Music System, music organ etc. etc. are also involved. In the case of this appellant, the benefit of TR concession was denied on the ground that since he did not have any work permit he could not have earned money to buy the goods in question. 2. Shri P. R. Prasad, the learned SDR for the Department submitted that in the declaration form use of the articles in question for a period of one year is mentioned and the appellants having subscribed to such declaration cannot contend that Air Conditioners will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated thereunder was complied with, i.e. the articles should have been in the possession and use of the passenger concerned for a period of one year. The learned Consultant further referred to Customs Tariff Act, 1975 and in particular Heading 98.03 under which duty leviable in respect of baggage goods is 300% and in order to give special concessions to baggage goods, the Government issued concessional Customs Notification No. 137/90 under Section 25 of the Customs Act, 1962, dated 20-3-1990 under which the duty leviable on the items specified was only 25%. The learned Consultant further submitted that the Import Control Order 1955 is framed under the provisions of Import/Export Act, 1947 and by virtue of the same licence is required in respect of articles specified under Schedule I therein and in regard to baggage items a special exception was carved out under Clause 11(1)(g) which was of course subject to a proviso that a person concerned should not display the same for sale till after the market price depreciated by less than 50%. The learned Consultant also referred to the Public Notice No. 27/80 as amended by Public Notice No. 131/86, dated 13-11-1986 issued by the CCI E cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the part of the adjudicating authority depending on the facts and circumstances of each case. He further submitted that in the baggage declaration forms the passengers have subscribed to the use of the goods in question for a period of one year even though Notification No. 137/90 does not envisage such condition. 9. Shri J.M. Jayaseelan, the learned DR supplementing the arguments of the learned SDR urged that Notification No. 137/90 is issued under Section 25 of the Customs Act, 1962 and gives concessional duty to bona fide baggage like Air Conditioner read in conjunction with TR Rules, 1978 and Section 79 of the Customs Act, 1962. He further submitted that the objective satisfaction of the adjudicating authority is the relevant criteria for the grant of concession under the TR Rules as otherwise the benefit is likely to be abused. 10. I have carefully considered all the submissions and indeed heard the arguments by the learned Counsels/Consultants, S.D.R. and the D.R. for more than a day. I have also gone through all the relevant records and the impugned orders. The primary question that arises for my determination in the above batch of appeals is whether the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assenger concerned must have come to India for good and stayed for one year. The benefit of duty free concession was taken away subsequently in respect of certain goods like Air Conditioner, VCR, TV etc. and it is only in this context the Customs Notification No. 137/90 and 120/90 under Section 25 of the Customs Act, 1962 was issued. It would thus be seen that the benefit under these Notifications and also under earlier T.R. Rules, 1978 permitted duty free clearance of the goods subject to certain conditions and the goods otherwise attracted 300% duty. In terms of Customs Tariff, 1988, Chapter Heading 98.03 this concessional Customs Notification No. 137/90 was subsequently amended by Notification No. 156/90, dated 27-3-1990 and Notification No. 106/90, dated 25-7-1991. Reference can also be made in this context to Import Control Act, 1955 issued under the provisions of the Import/Export (Control) Order, 1947 in exercise of the power conferred by Section 3 of the Import/Export (Control) Act, 1947 (Act No. 18). Section 3 of the Import (Control) Order, 1955 placed restrictions on the import of certain goods to the effect that no person shall import any goods of the description specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Import (Control) Order, 1955. (2) xxxx 16. Therefore, a harmonious construction of the above provisions extracted would bear out that a person would become eligible to claim the benefit of TR Rules provided the conditions envisaged are satisfied. In the present batch of appeals, the goods were brought only in the year 1991 and prior to 1-4-1992. The law as it stood at the relevant time for the goods brought by the appellants as baggage was Notification No. 137/90 issued under Section 25 of the Customs Act, 1962 referred to above. The Department has not disputed the fact that the appellants who claimed the TR concession had stayed abroad for the required period of two years and the only ground on which the benefit under Notification No. 137/90 was denied was that by virtue of the status of the appellants the goods brought i.e. Air Conditioners could not be said to be bona fide baggage item for use of the passenger concerned. I am afraid, I cannot accede to this view of the learned adjudicating authority. It is settled law that if a person brings or imports goods in contravention of law it would attract confiscation proceedings in addition to penal consequences. The proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t factor to consider as to whether the person has brought the item for his bona fide use, till after a breach is committed or a contravention of law is noticed, it would be premature to jump into a conclusion that the item has been brought for effecting sale and not for bona fide personal use and therefore confiscable. It is opposed to the basic tenets of our jurisprudence. No doubt, it is open to the Department to keep a track in regard to the goods in question and take suitable action as deemed fit or proper if the department finds that any breach is committed by any person (appellants) in regard to the goods in question under the TR Rules by violation of the conditions stipulated therein. Anticipating a contravention or breach in future and effecting confiscation in praesenti will not be permissible in law. Therefore, in this view of the matter I am inclined to hold that when all the conditions in Notification No. 137/90 and the provisions of TR Rules, 1978 are admittedly satisfied the appellants would become entitled to the TR Rules and the goods would not be liable for confiscation and the persons in the absence of having been found to have contravened any provisions of the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am not expressing any opinion on the merits of the issue on the other items. 20. It would not be out of place before parting with these appeals to refer to certain practice of the Department permitting clearance of Air Conditioner under TR Rules in Madras, Bombay and other Collectorates. The particulars of such clearances of Air Conditioners at Madras were given on behalf of the appellants with notice to the other side. This would bear out that the Department has been releasing Air Conditioners. The specific particulars in respect of release of Air Conditioners in Bombay Collectorate though not given; a specific plea was made by the appellants and the Department is not able to deny the same much less produce any evidence contra in this regard though the learned SDR was directed to verify the same. I also refer to the order of the Government of India dated 10-8-1992 on a Revision Application filed by one Shri Mohd. Ghulam Rafiq, where Air Conditioner was released. The observation of the Government of India in para 4 of their order is reproduced below : While status of a person is a relevant factor and Government will not like baggage to be allowed clearance on concessional ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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