9911796707
TMI Blog1999 (1) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... Sl. No. 106-A of Appendix 2, Part B under the heading Engineering items , the import of which required a licence. As the appellants did not produce any import licence to cover the goods, a show cause notice was issued to them in November 1986 proposing confiscation of goods and imposition of penalty. 2. The matter was adjudicated by the Collector of Customs, Calcutta who held that the polyester films coated with Ferric Oxide was nothing but Audio Magnetic tapes in Jumbo rolls covered by Sl. No. 607(4), Part B of the above mentioned Import Policy. He confiscated the goods under Section 111(d) and (m) for contravention of Section 3(2) of the Import and Export (Control) Act, 1947 read with Section 11 of the Customs Act, 1962; he imposed a fine of Rs. 2 lakhs in lieu of confiscation and also imposed a penalty of Rs. 50,000/- under Section 112 of the Customs Act, 1962. 3. In the Bill of entry filed by the importers, assessment was claimed under sub-heading 3920.63 of the Schedule to the Customs Tariff Act, 1975 read with Notification 344/86-Cus. The Bill of entry was provisionally assessed under sub-heading 8523.13 read with Notification 119/87-Cus. The importers moved a Writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants case in regard to these processes but has affirmed the Collector s finding. As to whether the said polyester film falls within Item 48 of Appendix 6, List 8, Part I or under Item 607 of Appendix 3, Part A will depend upon whether the said polyester film is audio magnetic tape in jumbo rolls or is metallised polyester film to which processes have to be applied for conversion into audio magnetic tape. To determine this the matter has to be remanded to the Tribunal. Based upon this determination, the Tribunal will decide its classification. The appeal is allowed. The judgment and order under appeal is set aside and the matter is remanded to the Tribunal to be disposed of as aforesaid." It is in these circumstances that the above appeal has been heard again by the Tribunal. 6. We have heard Shri B.B. Gujral, learned Advocate appearing alongwith Shri R. Sudhinder, learned Advocate, who mainly contends that the issue has been decided in favour of the importers by the order of the Tribunal reported in [1997 (91) E.L.T. 601] in their own case for a prior period in respect of their Kandla Unit. In that order, the Tribunal has held that metallised polyester film coated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metallised Polyester films falling within Chapter 39 and used for the manufacture of magnetic tapes. It is not the case of the Revenue that the goods covered in the present case are different from those under consideration in the order cited (supra). Therefore, the ratio of that order is squarely applicable to the present case and following the ratio thereof, we hold that the goods in question are `polyester films metallised and fall within Sl. No. 565(48) of Appendix 6, List 8, Part I of AM 1985-88. The confiscation and penalty are therefore, set aside. The impugned order is set aside and the appeal is allowed with consequential relief due to the appellants in accordance with law. 9. We are informed by the appellants that the Bill of entry filed for import of these goods has not yet been finalised. Our mandate in the present case is confined to deciding the ITC classification, having regard to the clear language of the order of the Supreme Court dated 12-2-1997. Therefore, we are not called upon to record any finding on the classification of the goods for customs purposes. We are informed that the goods imported were utilised in the manufacture of Audio Magnetic tapes after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied for conversion into audio magnetic tape. To determine this the matter has to be remanded to the Tribunal. Based upon this determination, the Tribunal will decide its classification. The appeal is allowed. The judgment and order under appeal is set aside and the matter is remanded to the Tribunal to be disposed of as aforesaid." 13. In view of this order the matter is before us and we observe that the learned Counsel has cited the case of C/1113/96-B, dated 14/23-10-1996 in their own case and claimed that the present case is similar to the one covered by this order. While it is true that in principle the ratio of this order would apply, we are to see whether the present case also passes the same test as laid down therein, that is, on the basis of the criteria emphasised in that order. Hon ble Supreme Court has already held them to be polyester film coated with ferric oxide of 12 Microns and it has been held in the Tribunal s order cited by the Learned Counsel that such films are required to be subjected to further processes (which have been noted by the Supreme Court also) for converting them into audio magnetic tapes, hence the certificate dated 12-4-1984 of Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
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