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TMI Blog1995 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the lower authority. He pleaded that the lower authority first prima facie held that the goods imported were sub-assemblies and not PPCB as described in the Bill of Entry (BE) and import of the same could not be allowed in view of the fact that PPCBs have been specifically covered under Sl. No. 135 and 149 of Appendix 2B of Import Policy 1988-91 and specific ...... for the goods was required. Initially the appellant did not produce the licence mentioned in the Bill of Entry but later produced the licence the validity period of which had been extended. This licence has not been accepted by the lower authority as valid for the import. The learned Counsel pleaded that the goods were not sub-assemblies but only PPCBs. He pleaded for acceptance of the licence for clearance of the goods and setting aside the order of the lower authority. 3. Heard Shri Namasivayam, the learned DR. 4. The lower authority has primarily held that the goods that could be imported during the extended validity period of the licence were only capital goods and has held that PPCBs cannot be considered as capital goods and gave reasons for the same in his order as under : The definition of Capital good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the appellant had imported the goods within the validity period of the licence since PPCBs are specifically mentioned in the list attached to the licence, there could not have been any objection to their importation. However, later a restrictive endorsement extending the validity period only for capital goods was made and it has to be taken to preclude PPCBs for importation during the extended validity period. The learned lower authority has clearly stated that PPCBs had been imported within the extended validity period and for that reason therefore, the licence has been rightly held to be not valid for the importation of the goods. In view of above, we hold that the order of the lower authority is maintainable in law. 8. No case has been made out before us for reduction of the redemption fine fixed. We, therefore, do not find any reason to interfere with the quantum of redemption fine fixed. The appeal is therefore dismissed. Sd/- (V.P. Gulati) Member (T) 9. [Order per : Shri S. Kalyanam, Vice President]. - I have perused the order of my learned Brother and I am afraid I am not able to agree with him and hence this separate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and moreso on the basis of a recommendation of the D.G.T.D. which has been held by the Madras and Bombay High Courts to be binding on the authorities as per the rulings given above. The licence produced and referred to above contains a list attached and in the list of item Serial No. 3 relates to Populated Printed Circuit Boards, the goods in question. It is clearly stated in the list attached that the licences referred to therein are valid for the import of the following items upto Rs. 20,00,000" subject to `Actual User condition under para 51(iii) of the Import-Export Policy for April, 1985 to March, 1988. The licensing authority has not considered the scope and conditions of this express endorsement in the list attached to the licence in the impugned order. The list attached to the licence permitting import of the Populated Printed Circuit Boards would have no meaning at all, if the import of the populated printed circuit boards is not permissible on the ground that the same is not capital goods. The specific endorsement in the licence has to be harmoniously construed with the extended validity period which is for 24 months from the date of endorsement namely 10-2-1987; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 8 and 10, has not been gone into with reference to the records relating to the relevant Bill of Entry referred to in para 8 of the impugned order, the precise scope of the specific endorsement in the list attached to the licence in Sl. No. 3 covering the goods in question has not been properly discussed. If two views are possible, it is the assessee who is entitled to the benefit of any ambiguity in the licensing provisions and this does not appear to have been borne in mind by the adjudicating authority. I am, therefore, of the view that the impugned order has to be set aside and the matter remitted to the adjudicating authority to specifically consider the licence of the appellant in the context of the pleas putforth by the appellant and the points set out by him above and in this view of the matter, in the interest of justice, I set aside the impugned order and remit the matter for reconsideration by the adjudicating authority. Sd/- (S. Kalyanam) Vice President 26-8-1991 POINT OF DIFFERENCE Whether in the facts and circumstances of the case the lower authority s order confiscating the Populated Printed Circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities like CCI E DGTD. In this context, the ruling of Bombay High Court rendered in the case of M/s. Kamal Traders and that of Madras High Court rendered in the case of M/s. Benzex Labs Ltd. was relied. Reliance was also placed on the acceptance of the licence in post clearance and in this regard, reliance on the ratio of the judgments reported in 1988 (37) E.L.T. 44 (Cal.), 1984 (17) E.L.T. 50 (Bom.) and 1988 (34) E.L.T. 367, was placed. As regards the new point raised by Additional Collector during the hearing on the items being capital goods and hence, the licence being invalid, the counsel had relied on the ratio of the Bombay High Court rendered in the case of Bipin Chandra Uraj Lal Chelani v. UOI as reported in 1987 (37) E.L.T. 694, which held that the licence would not get invalidated even if it is issued in contravention of ITC Policy. The Learned Additional Collector, after noting the details of the licence vis a vis Sl. No. 3 of the list and para 51(iii) of the Import Export Policy Book for April, 1985 to March, 1988 held that: in view of the fact the PPCBs is specifically mentioned in the list of items and having regard to the various judicial decisions cited b ..... 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