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TMI Blog1999 (2) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rs. 30,000/- is justified in the facts and circumstances of the case. 3. Heard Shri R. Raghavan, learned Advocate for the appellants, who submits that the issue involves the import of second-hand machinery described as second-hand confectionery machine imported vide Bill of Entry No. 72, dated 4-2-1998.The importers are having a factory at Hyderabad which manufactures biscuits and falling under the SSI category. The department contends that since the importer does not hold a SSI license which clearly satisfies that he is licensed for the manufacture of confectionery, therefore, this import by him does not satisfy the condition of actual user OGL under the relevant import policy. 4. Learned Advocate contends that the import being of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l user in the said policy which is contained in Chapter 3. Para 3.5 governs the definition of Actual User (Industrial) and reads as follows : 3.5 Actual User (Industrial) means a person who utilises the imported goods for manufacturing in his own industrial unit or manufacturing for his own use in another unit including a jobbing unit. Learned Advocate submits that a plain reading as long as the importer utilises the imported goods for manufacture in his own factory or for manufacturing it in another unit though on his own account, the importer satisfies the condition of being an actual user. Learned Advocate submits that the main thrust of this definition is that such an actual user (industrial) should not trade in the item. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confectionery but only for biscuits, that issue is irrelevant as per the present policy in vogue for the importer to qualify as an actual user. The department has obviously, may be through force of habit, applied the definition of an older policy which has no legal sanctity to an import under this policy. Since all other conditions under this policy are satisfied, therefore, the department has clearly erred in ruling that the import was unauthorized and, therefore, by enforcing fine and penalty. (d) Learned Advocate also cites the case law of Punjab Niryat Ayat Pvt. Ltd. as reported in 1992 (62) E.L.T. 228 (Tri.). wherein, it has been held that Customs authorities have no jurisdiction to go beyond the licence. Learned Advocate submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods, the provisions of this para would apply. These provisions can be broken down as prescribing the following tests :- (a) The machines should have a minimum residual life of 5 years, which fact is not disputed. (b) It is allowed to be imported without a specific licence subject to actual user condition and in accordance with the procedure given in Handbook (Vol. I), which facts are not disputed. Actual user condition as per Para 5.2 of this policy also does not speak of any SSI Registration. (c) It can only be imported by an actual user, which fact is under dispute. 8. Therefore, of necessity the definition of actual user under this policy is to be considered. The same has already been extracted above as the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of his declaration that he shall use the imported goods in that unit. If he did not have any industrial unit on record, then it would have been a different matter, because then the importer would have to satisfy as to in which industrial unit he would use the goods on his account. Here even this is not involved as they propose to use the goods in their own industrial unit. As against this it is interesting to note that in earlier Import Export Policy, as already submitted by learned Advocate, the definition of Actual User (Industrial) clearly laid down that he was engaged in the manufacture of any goods for which he held a valid licence or Registration Certificate from the appropriate Government authority. This entire clause is sign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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