9911796707
TMI Blog2007 (1) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities found that the importation of the cylinders was in violation of the Gas Cylinder Rules 2004 and held that the cylinders were liable for confiscation. They have also found that cylinders imported cannot be treated as capital goods and hence they are restricted for imports in accordance with Para 2.17 of the FTP 2004-09 as only Second hand capital goods are allowed in accordance with Para 2.33 of the FTP 2004-09 of the Handbook of Procedures Vol. 1. 3.Adjudicating authority has passed an order holding that the cylinders imported did not satisfy the conditions of Rule 45 of the Gas Cylinder Rules, 2004 since imported cylinders were filled with nitrogen gas and Rule 45 ibid places restriction on filling of empty cylinder unless the cylinder and its valve and other fittings have passed the examination and test specified in Rule 35 and this was made amply clear in condition 2 of the license which categorically prohibits the cylinder from being refilled with any compressed gas without obtaining prior approval of the licensing authority. Accordingly, vide the impugned order the goods were confiscated under Sec. 111 (d) of the Customs Act, 1962 with an option to redeem the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2006 issued by the inspecting authority. M/s. Jakson Keay, in respect of cylinder and its valve, to the Chief Controller and his prior approval was obtained and licenses dated 20-10-2006 and 12-4-2006 were issued by the Chief Controller. Therefore, provisions of Rule 3 have been fully satisfied. (b) The Commissioner (I) has ignored Rule 3 and its compliance by the appellants and only relied upon two riders, which were ingrained in the license. It is an admitted fact that at the time of import of the empty cylinders, there were traces of nitrogen gas inside the cylinders. This fact was not disputed and the license itself suggests so. (c) The Commissioner (I) has observed that Rule 45 of Gas Cylinder Rules, 2004 places a restriction on filling of empty cylinders and its valve and other fittings have passed the examination and test specified in Rule 35 ibid. The appellants submit that the findings of the Commissioner (I) are applicable only after the cylinders were subject to filling in India i.e. Post Importation. This would mean simplicitor, that even if the cylinders were to be imported containing traces of nitrogen gas, as in the present case, yet, being pre-importat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reinvestigation of the case. In any view of the matter, the ld. Advocate submitted that there was enough evidence available before this Bench to hold that the cylinders were empty for all purposes to come. He, therefore, requested that the matter be decided on merits. 9. I have heard both sides at length in the matter and also perused the records. Appellants have a license for the manufacture, storage and distribution of liquefied compressed gases located all over India. Cylinders are required for the distribution of the liquefied compressed gas. These are not normal type of cylinders but are specially designed for storage of compressed gas. These cylinders are required to be fitted with a mechanical device for regulating the pressure of compressed gas for which a specific permission is required to be obtained from the Petroleum and Explosives Safety Organisation (formerly - Department of Explosives), Nagpur as the cylinders should have specific standards prescribed under the provisions of Gas Cylinder Rules, 2004. Appellants have complied with the provisions of the Gas Cylinder Rules, 2004 and based on this compliances, the Petroleum and Explosives Safety Organisation (former ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % Nitrogen was in violation of Rule 45 ibid, on the other hand, the Appellants have submitted that Rule 3 governed the import. I have gone through the said Rules and find force in the submissions of the Appellant that in the matter of import of the said goods, irrespective of whether the cylinders were empty or otherwise, so long as they confirmed to the said Rule 3 and the Schedule to the said Rule, the import of the cylinder would be covered under the license dated 20-10-2006. I find that the 1000 pcs of cylinders filled with 99.9999% Nitrogen of Chesterfield duly satisfied conditions of Schedule I and as a consequence the said authority issued the License dated 20-10-2006. Therefore, I hold that the provisions of Rule 3 have been fully satisfied and that invocation of Rule 45 was incorrect as it pertained to filling up of cylinders where storage of gas was permitted by the appropriate authority. 13.In order to clarify the position about the licences granted, the appellants herein have procured an affidavit of their Technical Services Manager, Shri Vutukuru Venkata Ramana, wherein he has clearly stated that these cylinders are meant for refilling high purity Nitrogen Gas and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
