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TMI Blog1995 (8) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice dated 4th Aug., 1983 alleging contravention of Clause 3(1) of Import (Control) Order, 1955 as amended read with Section 3 of the Imports Exports (Control) Act, 1947. Hence, the Importer was called upon to show-cause as to why the offending goods should not be confiscated under Section 111(d) of the Customs Act, 1962 and why penalty should not be imposed on them under Section 112 of the Customs Act, 1962. It has also been alleged that as per S. No. 12(18) of Appendix-2 of April-March 1983 Policy, 4 colour/2 colour off-set machines were permitted to be imported under OGL by the eligible actual users. However, there had been a change in the April-March 1984 Policy and therefore, S. No. 12(14) of Appendix-2 of this policy permitted importation of only 4 colour sheet fed off-set printing machines only. Therefore, it was alleged that importation of 2 colour off-set machines are not permitted under OGL during the Policy period AM 4 pertaining to the consignment in question. It ws also alleged that in terms of condition stipulated under condition 7 of Appendix-10 of the April-March 1983 Policy, the eligible actual user who entered into a firm contract for import upto 28-2-1983 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in no case it can be said that the firm contract was registered before 28-2-1983. Therefore, it was alleged that it appeared that the condition regarding registration of the firm contract with the bank before 28-2-1983 had not been satisfied in this case. It was, however, observed that even by registering the contract in terms of the provisions in condition No. 7 of Appendix-10 of April-March 1983 Policy Book, the clearence of the subject goods under OGL cannot be allowed and the reasons given in the S. No. 3 as follows : Condition 7 of Appendix-10 of 83 Policy stipulates that an eligible actual user (importer) should enter into the firm contract. The importer M/s. Shama Magazine, Asaf Ali Road, New Delhi, had obtained a provisional registration certificate for the proposed activity Job work of off-set printing" as shown in the certificate No. 55/55/8060/Prov./SSI, dated 28-4-1983 issued by the Directorate of Industries, Delhi. The unit was not in production on 28-4-1983 when the said registration certificate had been issued. Therefore, it was alleged that importer would not be considered as actual user (industrial or non-industrial) in terms of the definition of actual user ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the date of the letter of credit itself will be taken as the date of the contract. They stated that even in common law, an irrevocable documentary credit (L.C.) is a firm and irrevocable contract and recognised as such by all concerned. They also stated that the onus of determining that there is a firm contract and of registering the same is upon a foreign exchange dealer (Bank) and not upon Customs or Import Trade Control Authorities. The Grindlays Bank had issued a certificate dated 14-7-1983. It was stated that the Grindlays Bank had satisfied themselves about their being actual users before establishing their letter of credit. They also stated that they are Publishers of Books, Magazines Journals from the inception of the firm in 1953 and in fact such publication business was started in 1939 by one of their erstwhile partners. The requirement for Newspapers and Journals to be registered with a Government Authority came only in 1957 by an amendment of the Press and Registration of Books Act, 1867 whereby the Registrar of Newspapers for India (RNI) was made the Registering Authority. The RNI is also the Sponsoring Authority for all requirements of the Newspaper Industry und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They submitted that the shipment had taken place under a Bill of Lading dated 22-4-1983 and suppliers invoice dated 15-4-1983 when the previous policy was still applicable and hence relaxation for seven days was permissible under the new policy as per Condition No. 7 of Appendix-10 of AM 83 Import Policy. They denied any contravention of any rule or law and hence pray for dropping of the proceedings. 4. The ld. Collector after giving them an opportunity of the hearing did not accept the plea and held that the charges made out in the show-cause notice were sustainable and in that view of the matter held that the importation of the goods had been without a proper licence is prohibited under Section 11 of the Customs Act, 1962 read with Section 3(2) of the Imports Exports (Control) Act of 1947 and as per Govt. of India, Min. of Commerce Industries Order No. 17/55, dated 7th Dec., 1955. He ordered for the confiscation of the goods under Section 111(d) of the Customs Act, 1962. However, he granted them the option under Section 125 for redeeming the same on payment of a fine of Rs. 1,00,000/- the ld. Collector however had accepted the plea pertaining to the signing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be accepted and their import should be considered under OGL category and the benefit should be granted to them in this regard. He also relied on the Tribunal s order rendered in the case of M/s. Bharat Brass Silver Mfg. Co. v. CC, Delhi as Final Order No. A/829/94-NRB, dated 26-9-1994 and the ratio of the following rulings rendered in the case of 1. Resham Singh Brothers v. Collector of Customs, 1989 (41) E.L.T. 171 2 Asha Cellulose (I) Pvt. Ltd. v. Collector of Customs, 1992 (59) E.L.T. 550. 6. Ld. DR submitted that the violation of the I.T.C. Regulation was quite clear as they were not `actual users (Industrial). He submitted that the registration of newspaper with Registrar of Newspaper has nothing to do with the industrial activity. They might be bringing out magazine and newspaper but they were printed in a different place and hence they were required to show that they owned a press and the same had been registered with the Director of SSI. He submitted that on the date of import, they did not have an actual user of certificate . In this regard he referred to paras 202 and 203 of Handbook of Import Export. Therefore, he submitted that the confiscation of importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Col. 3 description of goods it is stated A. Newsprint/Transfer of REP Licence for the said item shall be governed by the provisions of Newsprint Control Order . This licence is sent to the actual user for the period AM 83 for importing goods value at Rs. 1,56,566/-. This licence also gives the warning that it is granted under the Govt. of India, Min. of Commerce and Industry Order No. 17/55, dated 7-12-1955, as subsequently amended, issued under the Imports and Exports (Control) Act, 1947 and is without prejudice to the application of any other prohibition or regulating affecting the importation of the goods which my be in force at the time of their arrival . We have gone through the records and we do not find any certificate from the Directorate of Industries in the file. The same has not been placed for our perusal. The appellants are merely relying upon the certificate issued by the Registrar of Newspapers and that of Chemical Allied Products Export Promotion Council. Both these certificates are not pertinent. The allegation is that as per S. No. 12(18) of Appendix-2 of April-March 83 Policy, 4 colour/2 colour off-set machines permits import under OGL by the eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofession or calling and has been assessed to income-tax as such; or (d) any laboratory, scientific or research and development institution, university or other educational institution or hospital; or (e) any service industry in existence and holds a licence for the purpose under the local law for atleast three years; or (f) public sector (non-industrial) undertaking, not run departmentally; this will not include a residential hotel, restaurant or eating house; or (g) any local authority. 5. Small Scale Industry means all industrial units with a capital investment of not more than Rs. 20 lakhs irrespective of the number of persons employed. Capital investment for the purpose of this definition will mean investment in plant and machinery only. When calculating the value of plant and machinery, the original price paid by the owner, irrespective of whether the plant and machinery are new or second-hand, will be taken into account. Ancillary units covered by the Notification issued by the Ministry of Industry No. IDRA/29B/75, dated 19th May 75 will be treated as small scale units even if the fixed asset of such units is not more than Rs. 25 lakhs". As can be seen from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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