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TMI Blog1995 (7) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... organic dyes including organic pigments and the goods permitted import were dye intermediates and chemicals appearing in Appx. 3 and used in manufacture of products exported, and as per para 8 of the general conditions for import under Appx. 17, it was necessary that the item imported found its use in export product, whereas here, the goods imported not only did not match with the item required for manufacture of the export product, but were nothing but concentrated whisky. It was also felt that the item was a consumer goods hit by Sr. No. 121 of Appx. 2B of the same policy book. Show cause notices were therefore served on the appellants. They contested the objections raised by the Customs authority. On conclusion of the adjudication proceedings, the goods imported were ordered confiscation and 15 barrels containing 2761 kgs. valued at Rs. 84,139.00 were permitted to be redeemed on payment of fine of Rs. 1,60,000 (Appeal No. C/1329/87 pertains to this) whereas redemption fine assessed for 10 barrels containing 1204 litres valued at Rs. 59,748 was Rs. 1,20,000/- (subject matter in appeal No. C/1330/87). Mr. S.D. Nankani, the ld. advocate for the appellants submits that the REP li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for import of Whisky concentrate, under heading Ethyl Alcohol. In his submission, no differential type of approach is, therefore, warranted. As to the finding of the authority below, about the same imported item being a consumer goods, falling within Sr. No. 121 of Appx. 2B of the policy book, AM 1985-88, the ld. advocate has submitted that the item imported cannot go in the same form, directly into human consumption, and as such, the said finding is not sustainable. 4. Mr. K.P. Mishra, the ld. SDR, has however submitted that it is an undisputed fact that the item imported being whisky concentrates, is not the input for Export Product shown in column 1 of the Product Group B 16.1 and as such, has no nexus with the export product. In his submission, therefore, the ratio of the judgment of the Bombay High Court in SVA Udyog Viniyog Ltd. v. Union of India (supra), made absolutely explicit in the judgment of the Division Bench, squarely stands attracted, and the same, coming at a subsequent period of time, could not be overlooked merely because the High Court dealt with an imported item distinct from the one here, or the one which was before them in Re : Bussa Overseas. As regards th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumer goods. For the purpose of the import policy, the consumer goods have been defined in para 7(13) of the policy book, and the item imported, obviously would not fit in the same. The finding given by the authorities below to that extent, therefore, is not accepted and is set aside. 7. The issue as to whether Neutral Malt Spirit, which is nothing but a whisky concentrate, falls within the category of Ethyl Alcohol, also needs no further deliberation, as the same has stood duly resolved in the Bombay High Court judgment in Re : Bussa Overseas (supra) and has been accepted by this Bench in Re : Bussa Export Corporation (also supra). 8. The material issue for determination, therefore, is whether the ratio of the decision of the Bombay High Court in Re : Bussa Overseas and Properties Pvt. Ltd. (supra), as followed by this Bench in Re : Bussa Export Corporation (also supra) should also be followed here. 9. Factual position before the High Court, in Re : Bussa Overseas and Properties Pvt. Ltd. have already been brought out earlier, and reading of paras 7 and 9 of the said judgment brings out the reasonings adopted to come to the conclusion as they have done. In para 7, after di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision. The High Court, themselves, have in Re : SVA Udyog Viniyog examined relevant policy provisions. In addition thereof, it cannot be overlooked, that, such licences mostly have the shopping lists attached, and in any case, they invariably mention, conspicuously on their face, the export product group. Such a mention cannot be construed to be an empty formality and has to be taken as circumscribing the importability of an item thereunder, and make them subjected to conditions laid down in Appx. 17. Merely because such licences are made freely transferable, may not, in absence of any provision or clarification whatsoever in that regard, be read as incorporating some laxity in or dilution of the condition and reservations otherwise made applicable. The transferability only indicates that the licence holder can, if he does not himself require the items permitted thereunder, can, pass over his entitlement under the licence, to any other person similarly situated. If it cannot be disputed that he has a qualified right to import an item, namely the one which he needs for the purpose of manufacture of Export Product, then mere right to transfer the licence, neither bestows upon him n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 130 of the Customs Act, but issue could not be so referred as their application was hit by the period of limitation, prescribed, as the same was filed even beyond the period which was within the statutory empowerment of the Tribunal to condone. 13. Here, undisputedly the nexus between the item imported and the Export Product specified in the licence is not established and hence, the import has been rightly held as not permissible. The order of confiscation is, therefore, justified and is upheld. 14. As to the quantum of redemption fine, it may be mentioned that it is not synonymous with the penalty. The idea is that none should be permitted to make any extra profit and earn a premium on their wrong doing. The item imported has its use in manufacture of whisky, and margin of profit obviously is high. The authority below appears to have kept that aspect in their view, while assessing the quantum of redemption fine. No plea is raised at the appeal stage, that profit that could have been earned is not to the extent of the quantum of redemption fine. No justifiable ground therefore exists to interfere with the same. 15. In the result, both the appeals are rejected. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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