1990 (3) TMI 228 - AT - Customs

Summary

Issues:
1. Imposition of fine and penalty for unauthorized import of tin plate waste.
2. Interpretation of actual user condition for import under OGL.
3. Allegation of importing tin plates seconds without proper industrial license.
4. Lack of opportunity for appellants to defend against specific allegations.
5. Request for reduction in fine and penalty based on bona fide import.

Analysis:
The appeal was against an order imposing a fine and penalty for the unauthorized import of tin plate waste. The appellants imported tin plate waste without possessing an industrial license for the end-product to be manufactured from it. The adjudicating authority found the import unauthorized as the appellants did not have the necessary industrial license. The appellants argued they should be considered actual users as they manufactured coconut oil marketed in tin containers made in their factory, but they did not possess the required industrial license. The tribunal noted that the appellants did not have the industrial license as per the policy's actual user condition, leading to the confirmation of the unauthorized import finding under Section 111(d) of the Customs Act, 1962.

The appellants claimed that what was imported was tin plate waste, not tin plates seconds, as alleged in the order. The tribunal found that no chemical analysis was conducted on the goods, and the authority's conclusion was based on their own verification of a sample. As the appellants were not informed of this verification or given a chance to defend against it, the tribunal held that part of the order was not sustainable due to lack of evidence and procedural fairness. Despite this, the tribunal upheld the finding of unauthorized import due to the absence of the required industrial license.

Regarding the penalty and fine, the tribunal decided to set aside the penalty of Rs. 5,000 imposed on the appellants and admonish them instead. This decision was based on the appellants' bona fide belief in importing under OGL as coconut oil manufacturers and the relatively minor nature of the fine. The tribunal dismissed the appeal except for this modification, maintaining the fine but removing the penalty, considering it just and in the interests of justice to admonish the appellants for the unauthorized import.