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TMI Blog2002 (3) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ent objected to the imports on the ground that the goods were "concentrates of alcoholic beverages" covered by serial No. 31 of Appendix 2B of the Policy and hence the REP licence did not cover the goods. 3.Show cause notice dated 12-12-1991 was issued proposing confiscation of the goods under Section 111(d) and proposing penal action under Section 112(a) of the Customs Act, 1962. Against the issue of the notice the importers filed Writ Petition No. 3664 of 1991 before the Bombay High Court; the High Court directed that the importers should file written submissions which they did, and the Collector of Customs by the order dated 23-1-1992 held that the imports under three bills of entry were unauthorised as the goods attracted mischief of entry at serial No. 31 of Appendix 2B of the Policy, confiscated the goods with option to redeem them on payment of fine of Rs. 13.25 lakhs, Rs. 13.70 lakhs, and Rs. 13.70 lakhs respectively for each bills of entry and imposed a total penalty of Rs. 3 lakhs. While accepting the contention of the importers that the goods are under-proof whisky only (in para 26 of the adjudication order) he rejected their contention that only over-proof whisky is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 lakhs and the penalty from Rs. 9 lakhs to Rs. 3 lakhs; reduced the fine of Rs. 13.65 lakhs imposed in order dated 23-4-1992 to Rs. 8 lakhs and the penalty from Rs. 3 lakhs to Rs. 1 lakhs; and reduced the penalty imposed in order dated 24-8-92 from Rs. 1 lakh to Rs. 10,000/-. The applicants have filed the above application for rectification of certain mistakes stated to be apparent from the face of the record. 7.We have heard Shri L.P. Asthana, learned Counsel who submits as under : (i) That the Tribunal did not consider the judgment of the Hon'ble Bombay High Court dated 4-8-1992 in Writ Petition 1551 of 1992 in respect of 45 consignments of compound alcoholic preparations viz. under proof strength preparations of a kind used for the manufacture of beverages imported by the applicants wherein clearance was sought in terms of the goods as ethyl alcohol under REP licences. The Customs authorities were of the view that these licences did not cover the goods and also that the goods were not relatable to the raw material used in the manufacture of the product to be exported and that the goods were consumer goods covered by serial No. 121 of Appendix 2B of the Import Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to uphold the confiscation of the goods, was also issued prior to 6-12-1990. (iii) That even otherwise the clarification dated 24-8-1990 is not specific. (iv) That the clarification dated 26-6-1990 communicated by the Additional CCI E to the Collector of Customs, Bombay was never brought to the notice of the importers before the import of the goods in question and it was also not published in the form of a public notice or trade notice and hence penal action against the importers is not justified. (v) That the Tribunal completely overlooked the following evidence submitted by the applicants before it for showing that only over- proof whisky/brandy is known as "concentrates of alcoholic beverages." (a) Copies of three Bills of Entry Nos. 012966, 012967 and 012968, dated 28-9-1989, appearing at pages 84 to 89 in Appeal No. C/263/1992. (b) Test reports of the goods covered by the aforesaid three Bills of Entry reading that over-proof whisky may be considered as "whisky concentrate" appearing at pages 78-83 in the second Appeal No. 263 of 1992. (c) Test Memo pertaining to the import of under-proof Brandy, imported vide Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re seeking to re-argue the appeals in the guise of ROM application which is not permissible in law. 9.We have carefully considered the matter and find force in the submissions made by the applicants. There are certain findings of the Tribunal which do not appear to be correct. It also appears that certain important submissions which have a direct bearing on the issues under consideration have not been considered by the Tribunal. These errors are apparent from the record. We, therefore, recall the order of the Tribunal under consideration and consider the matter afresh on merits. 10.The essential point for consideration is whether the goods imported are concentrates of alcoholic beverages. Such concentrates are restricted for import. The expression "concentrates of alcoholic beverages" is not defined in the Import Policy, although it is true that no percentage of alcohol is specified in the Entry. The clarification of 24-8-1990 on which the Tribunal heavily relied upon also does not specifically clarify the scope of the expression. It states that raw materials, components mentioned in the limited permissible list as well as those in the list of the Import Policy (Vol. 1) are mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found on the test of the samples. 11.It is settled law that in the absence of a definition in the law, the meaning is to be ascertained with reference to trade usage. It is also well settled that the burden of proving that the goods are prohibited or restricted for import lies on the Revenue. In the present case no evidence has been led by the department which could establish that the under-proof whisky/brandy could be regarded as concentrates of alcoholic beverages. The entire emphasis of the department has been on the clarification dated 24-8-90. We do not think that this clarification, to the exclusion of other evidence submitted by the appellants and the subsequent clarification of 9-10-90 can be regarded as conclusive or specific for defining the expression "concentrates of alcoholic beverages". We, therefore, find it difficult to hold that the import of the goods was unauthorised. 12.We further note that the applicants had earlier imported 45 consignments of under-proof whisky etc., and had declared them as compound alcoholic preparations. The clearance of these goods was allowed on execution of a bond and an undertaking. When the applicants produced licences for Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whisky which has been distilled at not exceeding 160°C proof (80%) from a fermented mash of not less than 51% rye, corn, wheat, malted barley, or malted rye grain respectively, and stored at not more than 125°C proof (62.5%) in charred new oak containers. Any of the whisky types mentioned above further qualify as straight whisky by complying with the following : "(1) Withdrawn from the distillery at not more than 125oC (62.5%) and not less than 81oC (40%) proof (for maturation purposes); and (2) aged for not less than 24 months. From the above in my opinion, it would appear to be reasonable to conclude that whisky distillate that has been distilled between 111°C to 125°C proof (11 to 25 OP) would merit to be considered as concentrate of whisky (whisky concentrate). Taking this as a criteria, in my opinion, the goods u/r may not merit to be considered as a whisky concentrate". 14.In these circumstances, we feel that there is an apparent error in the Tribunal's order dated 16-7-98 that the import of present consignment of compound alcoholic preparations, namely, under-proof whisky/brandy were not covered by REP licences on the ground that they were concentrates o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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