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TMI Blog1990 (6) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... lants. The matter was taken in appeal before the Collector of Customs (Appeals) who has also rejected the appeal. The present appeal is against the order of the authorities below. 3. Shri Nankani, the learned advocate, on behalf of the appellants contended that the REP licence in question is issued in respect of the appellants' own export. They are manufacturers/exporters. The CIF value of the car which has been imported without wheels and tyres was Rs. 52,686. In fact at the time of placing of the order, the value was only Rs. 50,219. Only on account of fluctuation in exchange rate, CIF value got increased. Otherwise, the value in Dollars remains the same. Thereafter, he referred to the provisions of para 146 of the Import Policy AM. 1981-82 and contended that only motor cycle and scooter are specifically excluded from the purview of para 146 for purpose of importing the same as sample subject to the value limit prescribed therein. Motor car is not specifically excluded as per AM. 81-82 Policy. Only in the subsequent Policy period, motor car was specifically mentioned as an excluded item. He, therefore, contended that motor car could be imported as a sample against the REP licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prescribed limit is only Rs. 2686 and this excess value is only required to be adjudicated. On account of this, the Collector (Appeals) is not justified in upholding the order of absolute confiscation of the motor car itself, which is valued at Rs. 52,686. 4. On the question of bona fides he contended that there was no mis-declaration in this case. Even the description and declaration made in the Bill of Entry and the other documents clearly shows that the Honda motor car without wheels was imported. Because they claimed it as a sample against REP licence, it cannot be construed to be a deliberate attempt. According to their understanding motor vehicle can be imported as a sample in terms of provisions of para, 146. Moreover, if they wanted to be within the value limit they could have sought for some other discount and be within the limit of Rs. 50,000/- prescribed, in which case the Collector (Appeals) could not have objected and allowed clearance as sample. He, therefore, contended that absolute confiscation of the motor car is not called for. Even if there is any infringement, it is only with regard to excess value which is also marginal. The penalty imposed is also not just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that para 146 clearly lays down the value limit for purpose of import of the sample. If the value limit is exceeded it is incumbent on the part of the importer to approach the licensing authority duly sponsored by the Export Promotion Council to get the licence duly endorsed for the excess value. The fact that this has not been done, clearly indicates that they do not want to reveal before the licensing authority, their real intention which was to import the car as a sample, in which case it would have been objected to by the licensing authority. Hence, their plea for condonation of the excess value before the Customs authority is nothing but mala fide. Moreover, their item can be called as sample in terms of para 146, if only the value limit is within Rs. 50,000/-. In this case, admittedly even at the time of placing the order, the value has exceeded Rs. 50,000/- and they could not have embarked to import this by resorting to this provision. He, therefore, contended that right from beginning their mala fide is discernable. He, therefore, justified the absolute confiscation of the car and imposition of penalty. He argued that even higher penalty is warranted in the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er they will be permitted to import samples of the items like electronics and automobiles with a view to study the possibilities of manufacturing those items. The office of the CCI & E in reply to the letter from the appellants vide their letter dated 24-1-1980 requested the appellants to clearly indicate the exact meaning of the word electronics/automobile items mentioned therein. They also asked the appellants to list out the items proposed to be imported to enable them to consider the appellants' matter further. Thereupon, the appellants under their letter dated 12-2-1980 indicated that electronic items such as Oscilograph, E.C.G. Cardiogram machine for checking the condition of the heart and automobile items such as pistons, piston rings, valves, gaskets etc. and sought for confirmation from the CCI & E that whether they being exporters of diamonds, with an intention to diversify their activities as a manufacturer, the above items were permitted to import as samples of items other than those listed in para 138 of AM 80 Policy against REP licence issued to them on their own export. They also sought for clarification whether they were permitted to dispose of these samples to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to import it as a sample. Even the certificate of registration, as rightly pointed out by Shri Mondal, was much after the importation of the motor vehicle. No correspondences with the manufacturers of Honda motor car have been produced to show that they are interested in bringing out a model equivalent to their model with foreign collaboration. There are no documents produced to show that they have approached the Ministry of Industry with any proposal for assembling a car or manufacture a car. The entire question with regard to their claim that they imported car as sample under para 146 has to be adjudicated in the context of the aforesaid factual position. Shri Nankani contended that it was not the case of the Department before the lower authority that their claim for clearance of car as sample was in any way in doubt. In fact, the Dy. Collector has observed that the motor car can be cleared as a sample. It would be pertinent to look into the findings of the Dy. Collector, which was specifically referred to by the learned advocate : "No doubt, para 146 of AM 82 Policy does not, by itself, restrict import of a motor car as a sample against REP licence issued to the registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od faith or bona fide as urged by Shri Nankani, the learned advocate. 11. Now the next question to be considered is whether automobile can be imported as sample under para 146. This question, as we already observed, is purely an academic one. In this case, even if it is construed that it could be imported as a sample under para 146, there is a burden cast on the importer to establish that it is imported by them as a sample. There are many items which have not been excluded in para 146 - to illustrate - pleasure yachts, ships, aircrafts etc. On this ground, it cannot be taken that all these can be imported as samples at one sweep, without bothering to establish that they are needed as samples and they are in bona fide importing them as samples. Moreover, the Policy Makers have also placed a value restriction of Rs. 50,000/- and tried to list out those items, which could not be allowed to be imported even though they may come within the value limit. Hence, value limit is as much sacred as the establishment of claim of import as sample. 12. In view of this position, an item like motor car import of which is specifically governed by separate Policy that too allowed only to certain ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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