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TMI Blog1993 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... A.M. 1988-91 Import Policy. Since the matter involved in both these Appeals are identical and since the appellants are also common in both these Appeals, we propose to dispose of these Appeals by a common order. 4. The brief facts of the case are that in Appeal No. C-51/92, the appellants imported two consignments of jumbo rolls of X-ray films of a quantity of 25414m2 and 25243m2 valuing at Rs. 13,94,1868 and Rs. 13,84,913 respectively. 5. In Appeal No. C-52/92, the same appellants imported two consignments of jumbo rolls of medical X-ray films of a quantity of 25,182m2 and 24,814m2 valuing at Rs. 13,77,161.70 and Rs. 13,36,913 respectively. In both the cases the appellants sought clearance under OGL under Appendix 6, List-8, Part-I, Sl. No. 297 of A.M. 1988-91 Import Policy. They claimed themselves to be actual users. 6. The appellants claimed to be in the business of slitting/confectioning of jumbo rolls of medical X-ray films and other photo sensitive material. It is the case of the Department that the activity of slitting/confectioning of photo-sensitive materials was taken out of the purview of the S.S.I. vide Govt. of India, Ministry of Industry, under Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a SSI unit the same is not applicable to their case. They also stated that the goods were brought in terms of the permission granted by the Honourable High Court vide interim Order dated 12-1-1989 and that they could import goods to actual users. The same interim order was varied only on 7-7-1991 and before the variation they opened the Letters of Credit for the above consignment. They also pleaded that the Government of India, Ministry of Industry, Department of Industrial Development had advised to release the goods vide their letter No. 15/48/86-CGF, dated 3-9-1991 and in their letter dated 19-12-1991 as no industrial licence is required under the present Policy. Therefore, the goods may be released on concessional rate of duty. 9. After giving a personal hearing, the adjudicating authority in both the cases held that the import is against the provisions of the Policy and confiscated the goods. He allowed the appellants to redeem the same on payment of a redemption fine of Rs. 15 lakhs in each of the case and imposed a penalty of Rs. 5 lakhs against the appellants in each of the cases. 10. The learned Advocate Shri Anil Belani along with Shri N.C. Chakraborty, Consultant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to the Collector to hold in favour of the appellants. It was also vehemently contended before us that the learned Collector did not look into the letters dated 3-9-1991 and 19-12-1991 issued by the Ministry of Industry, Government of India. They had clarified the position and categorically stated that the Collector should have released the consignment imported by the appellants. He also contended that under the subsequent Policy, slitting of jumbo rolls was de-licenced. Hence, the conduct of the appellants has been bona fide throughout. There is no guilty mind or mens rea. The appellants are actual users. They opened Letters of Credit after obtaining interim order from the Honourable High Court of Calcutta. Hence, there is no question of imposing any penalty and confiscation of the goods. In support of their contentions, reliance was placed on the decision of the Tribunal reported in 1992 (41) E.C.R. 301. 13. Replying to the above contentions, the learned Senior Departmental Representative Shri Dutt Majumder took us through the impugned order and he reiterated the reasonings therein. It was contended before us that the appellants themselves took the stand before the Honoura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prayer for a declaration that they are not to obtain any industrial licence under the Industries Development Regulation Act, 1951 and for a Writ of Mandamus commanding the authorities to refrain from insisting for a licence on the said Act for the purpose of carrying on manufacturing activity. These Writ Petitions filed by the appellants were disposed of finally by an order dated 26-6-1991. In that order, the Calcutta High Court held that the appellants cannot take two self-contradictory stands. They had taken a stand in the first Writ Petition for issuance of necessary licence and in the second petition, they claimed that they did not require any licence. Dealing with the above-said contentions the Hon ble High Court found no merit in appellants contention and dismissed the Writ Petitions of the appellants wherein their Lordships held as follows :- ..."The Writ Court is not the forum to decide any disputed question of fact. Admission of any party unless properly explained remains binding upon the party concerned. It is a settled principle of law that suits may come and go and may be dismissed or may be withdrawn but admission remains for ever and binding upon the parties u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the licence. Their Lordships held that since certain items had been imported without licence, the laws of the land were to be followed as a matter of course, and the consequences will follow for importing the items not in accordance with the law. The above finding of the Honourable High Court is binding on us. The appellants also have not challenged the above order. Therefore, in a case like this, when Honourable High Court has given a definite finding that the import is not in accordance with the law, the Tribunal cannot give any contrary finding to the same. These findings are binding on the appellants as well as the authorities functioning under the Act. These findings of the Honourable High Court are accepted by the appellants. No Appeal also was preferred against the order of the learned Single Judge of the Honourable High Court. While disposing of the writ petitions, His Lordship further held as follows :- The question of redemption and for release of goods on payment of dues and penalties have got to be considered in the proper perspective by the authorities concerned and there is nothing for the Court to indicate any other course which is not warranted by law. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods in question and the imposition of penalty is in accordance with the law. But in deciding the quantum of redemption fine, the extenuating circumstances are also to be taken into consideration. The learned Advocate relied on the decision reported in 1992 (41) E.C.R. 301 (Tribunal) : Asha Cellulose (I) Pvt. Ltd. v. Collector of Customs, Bombay. Relying on the above decision it was contended that this is a fit case where no redemption fine and penalty should be imposed on the appellants. We have considered the above-said decision. In that particular case, the appellants were the actual users industrial and at the relevant time that is on the day when the subject consignment was launched on the Indian shore, they held the industrial licence for manufacture of Ethyle Cellulose and the subject item was the input for reactor vessel, which was essential for manufacture of ethyle cellulose, but the industrial licence did not contain the endorsement to the effect that the appellants had also to manufacture the reactor vessel, and an objection being raised, due endorsement thereof was obtained within a couple of days before the clearance of the imported goods. Therefore, in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been canalised. The Tribunal was not justified in ignoring this circumstance which supported the appellant s plea to import the same. It is contended on behalf of the appellants that the respondent-authorities have practised discrimination against the appellants in imposing the redemption fine to the extent of 100 per cent on the price of the imported goods. The learned counsel urged that after the impugned import of the industrial coconut oil by the appellants, M/s. Jayant Oil Mills Pvt. Ltd. had also imported identical goods and the same had been cleared by the Collector of Customs at Calcutta but in appeal the Appellate Tribunal imposed a redemption fine of 35 per cent of the cost of the goods. The appellants pleaded for the same treatment to them but their plea was rejected by the Appellate Tribunal on the ground that the appellants were established export house and they were well-versed with the Import Policy, consequently no concession could be granted to them. 7. After hearing the counsel for the parties at length and having regard to the facts of the case we are of the opinion that the appellants were not entitled to import the industrial coconut oil under OGL as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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