9911796707
TMI Blog1993 (1) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of Notification No. 59/88 by virtue of which duty was leviable at the rate of 55% + 45% + CVD nil. On examination of the consignments, parts of cordless telephones were found in place of parts of electronic push button telephones for the manufacture of which Suneel Communications possessed Import Licences for import of certain components as set out in the list attached to the licence. Besides, in the case of the consignment covered by B/E No. 214699, some goods like LED s screws, washers, stickers, etc. valued at Rs. 1500/- which were not invoiced, were also found. The matter was referred to the Department of Electronics along with samples drawn from the consignments and the Department of Electronics, by letter dated 26-4-1989, confirmed that electronic push button telephones do not cover the category of cordless telephones and that the importers are not licenced to manufacture cordless telephones. 2.2. Show cause notices were issued to the importers proposing confiscation of the goods under Sections 111(d), (m) and (l) of the Customs Act, 1962 on the grounds that the goods are not covered by the import licences, and the benefit of Notification No. 59/88 is not available as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative, he submits that, even assuming without admitting that goods imported are parts of cordless telephones, Cordless" telephones are included within the meaning of the expression push-button telephones as, in both, dialling is done by push button. He submits that in the light of the industrial licence issued to Suneel Communications for manufacture of the phones, Customs authorities cannot hold that goods have been imported unauthorisedly. He refers to the decision reported in 1981 (8) E.L.T. 235 (Bom.) to support his contention that licence validity cannot be questioned by Customs authorities. He attacks the conditions attached to redemption on the ground that, once goods are confiscated, Customs authorities cannot proceed further and impose conditions and he cites the decisions reported in 1983 (13) E.L.T. 1305 (S.C.) and 1990 (45) E.L.T. 536 (Bom.) in this regard. Ld. Counsel submits that the goods have been properly declared as telephones in SKD condition and import licence details also having been declared in the Bill of Entry, the charge of misdeclaration attracting the provisions of Section 111(l) (m) is not warranted. Lastly, he contends that the benefit of Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronics and the clarification is of a binding in nature as has been held by the Tribunal in the case of A.B. Controls v. Collector of Customs [1989 (44) E.L.T. 525]. In response to the arguments of Shri Raina that the goods imported are the same parts which are mentioned in the list attached to the licence, the learned SDR contends that the goods are not covered by the licence as the licence is an actual users licence for manufacture of electronic push button telephone and the importers are not actually users for manufacture of cordless telephone, parts of which have been imported in the consignments in dispute. He also submits that the Department has made out a case of mis-declaration as the goods have not been properly declared as parts of cordless telephones. Finally, he submits that the benefit of Notification No. 59/88 is not available to the imported goods as the Notification grants concessional rate of duty to complete telephone instrument and cordless telephone and not to parts thereof. 8. Commenting on the role of the Jammu Kashmir Bank the learned SDR submits that once the Bank has filed the Bill of Entry it is importer within the meaning of Section 2(26) of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se be seen before release of this consignment. Sd/- 27/3 AO/AC 11. From the examination report and from the sample that was produced before the Bench during the course of the hearing, it has established that what has been imported is parts of cordless telephones. The imported item contains no provision for connecting wire which is an essential requirement for electronic push button telephone. There is provision for antenna which is an essential requirement for cordless telephone and not for electronic push button telephone. We, therefore, have no hesitation in holding that the goods imported are parts of cordless telephones and not parts of electronic push button telephones. 12. The alternate argument of the learned Counsel that the cordless telephones are included within the meaning of the expression Push Button Telephones is also without any force in view of the opinion of the Department of Electronics dated 26-4-1989 to the following effect : Letter No. 3(7)/88-DE dated 26-4-1989 from Government of India, Department of Electronics, Lok Nayak Bhawan, New Delhi - 110 003 to Shri K.J. Chaudhary, Asst. Collector of Customs, Office of the Addl. Collector of Customs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Communications to Rs. 75,000/-. 17. Regarding the penalty imposed upon the other appellant, M/s. J K Bank Ltd., we agree with the contention of the learned Counsel that the bank only dealt with the documents as bankers and filed bills of entry as the goods were hypothecated with the Bank for realisation of loan advanced by the bank to Suneel Communications. We are satisfied that no conscious act of commission or omission has been established against the bank and, therefore, we are of the view that the provisions of Section 112(a) of the Customs Act, 1962 are not attracted against the bank. The case law cited by the learned Counsel is distinguishable on facts. In the case of Bank of Madura v. Collector of Customs, Madras reported in 1987 (28) E.L.T. 396 the Bank of Madura did not file the bill of entry. In the case of Prem Rattan and Shadi Lal v. Collector of Customs reported in 1990 (50) E.L.T. 265, the financier did not file any bill of entry for the import of the goods. However, in view of our finding that M/s. J K Bank was not guilty of any act of commission or omission in relation to the import, we set aside the penalty imposed thereon. 18. In the result we hold as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
