TMI Blog1989 (11) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... gnment of Loaded Printed Circuit Boards (Hereinafter referred to as PCBs) under REP licence granted under para 138(13) of Import Policy AM 1983-84. These goods were sought to be warehoused by filing the warehousing Bs/E and the goods were brought and deposited at C.W.C. Vadodara. The import licence produced was debited with regard to this import and the goods were allowed to be removed to the bonded warehouse at Baroda. When the goods were in the Warehouse, it came to the notice of the department that identical number of V.C.Rs. of National Model NVG-10 in the form of disassembled condition have been imported at Kandla. These imports are alleged to have been at the instance of the appellants, M/s. Jolly Enterprises and the two partners viz. S/Shri Suresh and Nilesh. It was also noticed by the department that Dipen have no factory for the manufacture of electronic component or for making sub-assemblies nor they have in possession any registration certificate for the said manufacture. Since the import licence is with the actual user condition and the goods have been imported without any registration certificate justifying the utilisation of the imported PCBs in their factory and sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his own. 4. Shri Mondal, on the other hand, contended that Shri. M.C. Kaul, though appointed initially as Dy. Collector of Central Excise Customs, Baroda, has been redesig-nated as Addl. Collector under Board s General order F.No.A.11013-219/80-84 dated 28-2-1981. As per the allotment of work by the Collector, he is required to adjudicate the Customs adjudication cases within the powers of the Addl. Collector. As regards the Notification issued under Sec. 4 of the Customs Act, he contended that since the Collector includes Addl. Collector, as per the definition of the Customs Act, once the Collector of Central Excise Baroda having been notified as Collector of Customs under Sec.4 of the Customs Act, there is no need to specify Addl. Collector in the said Notification. On the question of imports through Ahmedabad Airport, Shri Mondal contended that although the goods were imported through Ahmedabad airport, they have not been cleared for home consumption by officers of the Ahmedabad Customs Collectorate. These goods were entered for warehousing and not for home consumption and the goods were removed under bond to the Warehouse at Baroda. He referred to the order of distributi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Sr. Dy. Collector at the Headquarters has been re-designated as Addl. Collector and powers of adjudication relating to Customs cases have been specifically entrusted by the Collector s order. In the circumstances, we are not convinced by the arguments of Shri Jain, die learned advocate that because of the initial appointment order posting Shri Kaul as Dy. Collector, he cannot be construed as Addl. Collector. We are to look into whether he was the Addl. Collector functioning at the material period in the Baroda Central Excise Collectorate. From the orders produced by Shri. Mondal, we are convinced of the position. Now the remaining question to be answered is whether in the absence of specific mention of Addl. Collector in the Notification No. 252-Cus., dated 27-8-1983, can it be construed that Addl. Collector of Central Excise has been appointed as Addl. Collector of Customs. On this we observe that as per the definition of Collector in the Customs Act 2(8), Collector of Customs includes Addl. Collector of Customs . Hence in the Notification, the Collector of Central Excise has been appointed as Collector of Customs, the Addl. Collector working under him is also incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the provisions of Customs Act as discussed above. In the circumstances, since the citations made by the learned advocate relate to the cases, where the goods have been finally cleared for home consumption and an order has been passed by the proper officer in terms of Sec. 47 or Sec. 51 of the Customs Act the ratio of those decisions cannot be applied to this case, where the goods are yet to be ordered clearance for home consumption. In this view of the matter, we overrule the preliminary objection of lack of jurisdiction and proceed to consider the other arguments of the learned advocate. 7. Shri Jain s arguments can be grouped under the following headings : (i) The Addl. Collector cannot club the goods imported at Kandla Port with the goods involved in this appeal and take a view for purpose of looking into the validity of the import licence produced. In this context, he cited the following judgments:- (i) 1983 (13) E.L.T. 1456 (S.C.) U. O.I. v. Tara Chand Gupta Bros; (ii) D.P. Anand Anr. v. M/s. T.M. Chakora Co. (Bom) DB dtd 17-8-1960 in Appeal No. 4 of 1959; (iii) 1987 (30) E.L.T. 345 (Cal.) DB C. C. Col. v. Mitsuny Electronic Works; (iv) 1989 (39) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration with Gujarat Industrial Directorate, since the fact of manufacture by them is not in dispute. They imported components falling under the same item of the Tariff and hence no Central Excise licence is called for. They also hold the certificate from the West Bengal Government for the manufacture of electronic assemblies and sub-assemblies. In the circumstances, the specific licence produced by them is valid for import of the goods. Hence, the order of the Addl. Collector, confiscating the goods, is not sustainable. (vi) The Addl. Collector cannot consider the imported PCBs as consumer goods. Even the VCR cannot be construed as consumer goods because it cannot be directly consumed by human being without attachment of T.V. or camera. (vii) The Addl. Collector s order treating the goods as disposal goods is not correct. There is no evidence to show that the goods have been dis-assembled at Hongkong. Moreover, even if the goods have been dis-assembled and sent by the foreign suppliers, they cannot be treated as disposal goods as per definition. (viii) The Addl. Collector cannot, on his own, conclude that the import at Kandla as well as the appellants goods have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age industries sector, engaged in the manufacture of any goods for which it holds a licence or Registration Certificate from the appropriate Government authority, wherever applicable. In this case, the appellants do not possess any registration certificate from the Government of Gujarat, where they are said to be having a unit in Vadodara, for making electronic sub-assembly. The certificate produced only registers them as a SSI unit for manufacture of emergency lighting. They do not have any certificate from the Government of Gujarat for manufacture of electronic sub-assembly or assembly. The certificate produced by the appellants from the Government of West Bengal Directorate of Cottage Small Industries, cannot be said to cover the activities in the State of Gujarat, where the appellants claimed to carry on the sub-assembly operations. It is not the case of the appellants, at any stage that the goods are meant for removal to West Bengal for manufacture in the State of West Bengal. He also contended that the goods do not require any manufacturing operations. They are fully loaded PCBs dis-assembled from VCRs. The corresponding parts having been received at Kandla, the only requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owell Company Ltd. and following the ratio of the judgment, upheld the clubbing of different consignments imported under different bills of entry by different parties. In the context of the aforesaid decision, he contended that the imports at Kandla and the impugned goods at Ahmedabad should be clubbed together and construed as complete VCRs which are consumer goods as per the definition of Consumer goods laid down in the Import Policy AM. 83-84 and as per Sr. 93 of Appx. 4; such consumer goods are totally banned and cannot be permitted for import. He also contended that there is no need to go into any other Policy since such consumer goods even as per the Policy 1983-84 are banned goods. 10. On the question of going by the past practice, he cited the judgment of Calcutta High Court reported in AIR 1986 Cal. 309 and argued that the Customs authority cannot be made to stick to the error committed in the past. In this case, past clearance erroneously allowed cannot legalise the present imports especially when the licence authorises actual use and the appellants do not have a valid registration certificate for actual use of the goods for the manufacture of electronic assembly or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, two major issues are to be considered, one is, whether the consignment imported by Borvili Hosiery Mills at Kandia and the goods covered by the present appeal imported by the appellants M/s. Dipen Enterprises can be clubbed together for sustaining the allegations contained in paras 9 to 20 of the show cause notice. The Addl. Collector in his finding has held that both are to be clubbed together and on that basis held the import to be unauthorised and also imposed penalties on all the four appellants. He has also gone to consider the issue treating the consignment imported at Ahmedabad airport as an individual importation against the licence produced and held that the licence produced is not valid. Now the question to be decided by us is; firstly; whether the clubbing of both the consignments is legally tenable and; secondly; whether the Addl. Collector s finding to the effect that even if the consignment is taken as individual importation, whether the licence produced for clearance of the goods imported through Ahmedabad airport is valid and the condition prescribed is satisfied. 12. On question of clubbing together, we observe that the Supreme Court in the case of Tarac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r own account and all the documents are in their favour. The department s case that they are from one and the same source and the PCBs form part of the dis-assembled VCR and the imports of PCBs at Ahmedabad are on behalf of M/s. Jolly Enterprises are not duly supported by any tangible evidence. Even the reference to the common hand-writing on both the invoices is not cited in the show cause notice and the appellants were not given any opportunity to rebut it. In the circumstances, we are unable to follow the ratio of the decision in M/s. Monica Enterprises Ors., where the department could establish by tangible evidence that the beneficiary is one and the same person and the split up of the consignment was a colourable device to circumvent the policy. In view of this position, we would like to respectfully follow the other decision of this Bench in M/s. Susha Electronics Industries and also the principles laid down in the Supreme Court decision in Tarachand Gupta s case and hold that clubbing of both the consignments for arriving at a view regarding the validity of the licence is not permissible. 13. The validity of the licence is to be determined on the basis of the consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed to be for the manufacture of electronic assemblies. Thus from the panchanama, the machinery or equipment claimed to be required for manufacture of electronic assemblies are screw drivers, soldering irons and testing board. As seen from the panchanama dated 21-5-1987 for the seizure of PCBs, it is observed that one of the witnesses, Shri Martin is a technical person and having a degree in electronics and working with another manufacturer of TV sets and VCR sets. As per the opinion of this witness, the seized goods are complete in all respects and are ready for assembly mounted with the components and wire and pin. According to his opinion, the aforesaid imported items are merely to be attached to the plastic body and tape mechanism to complete full VCR set. 18. It is not disputed that the appellants do not have any valid registration certificate for the manufacture of electronic assemblies or sub-assemblies in their factory at Baroda. They have only produced the certificate issued by the West Bengal Directorate of Cottage Small Scale Industries in support of their claim that they are registered as manufacturer of electronic assemblies, having their factory in West Bengal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts from the West Bengal Government be valid? In our opinion, this certificate cannot be said to be valid for the operation carried out in the factory at Baroda, since the West Bengal Govt. is not the appropriate Government authority for issue of such certificate to cover manufacturing operation at Baroda. The Directorate of Industries, State of Gujarat is the appropriate authority for issuing the registration certificate. The certificate of registration issued by the Directorate of Industries, Government of Gujarat does not cover the line of manufacture of assembling of electronic components. It is for an entirely different manufacturing operation. The appellants M/s. Dipen Enterprises, cannot be said to be an actual user (industrial) of the impugned goods as per the definition laid down in the Policy. They, therefore, cannot be said to fulfill the condition of actual user (industrial) as per the definition laid down in the policy. In as much as Dipen do not satisfy the condition prescribed for actual user (industrial), the licence cannot be said to be valid at the point of import itself. When the basic requirement of having the registration certificate is not complied with, they c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that this wrong clearance in the past should be continued in this case also. 24. On the question of absolute confiscation, no arguments have been advanced by Shri Jain. We have in our findings held that the appellants M/s. Dipen Enterprises do not satisfy the condition of actual user in the absence of valid registration certificate and cannot, therefore, be said to have been authorised to import the impugned goods and on that ground uphold the order of confiscation. In the absence of any alternative argument or request made for allowing the goods on redemption, we have not considered this aspect. With the result the order of absolute confiscation stands. 25. As regards the penalty imposed on the appellants, M/s. Dipen Enterprises, we find that the appellants, without possessing a valid registration certificate have imported the goods claiming to be for actual use. The appellants claim that they are actual user of the imported goods for manufacture of sub-assemblies of electronic components in their factory at Baroda is open to doubt. In the circumstances, unauthorised import is to be considered a deliberate one and the penalty imposed on M/s. Dipen Enterprises is therefore s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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