TMI Blog1995 (9) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... 45/89), a Registered SSI unit, a proprietary concern of Mrs. R.P. Mehta where her husband Mr. R.P. Mehta (C/568/89) was working as the Manager, investigations were initiated by the Preventive Collectorate of Customs at Ahmedabad. The same resulted in recovery of 10 Draw Texturising Machines believed to have been imported by way of importing 100% components under the licences issued for import of components, with only assembly made in India, by resorting to what is known as screw driver technology at the site of various parties, who had purchased the same. Texturising machines figured at Sr. No. 4(5) (d) Appx-1 Part-A of the Import and Export Policy AM 1985-88, which was the policy applicable to the said import and hence, it was felt that the import of the entire machine could be made only against a Specific Licence, and in any case, the items imported could not have been imported under the licences held by M/s. R.P. Industries, who, under the licences held by them, could have, under their status of Actual Users, imported only the components with process of manufacturing the machines to be undertaken only at their factory; whereas what they had actually done was to import the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and advice to the parties concerned, on some policy provisions and the Nirlon Synthetics stated that they were interested in purchase of same machinery and had therefore, made some advance payment to the Needle Eye Investments who in turn contended that they had simply granted loan to M/s. R.P. Industries on recommendation of Mr. Bhagat. Both of them pleaded to have taken no part in causing the import. The other appellants claimed to have purchased the machines in regular course of business. 4. Adjudication proceedings were conducted and the impunged order was passed. 5. Heard the ld. Advocates for the appellants and the ld. S.D.R. 6. All the appellants have challenged the jurisdiction of the Collector (P), Ahmedabad to issue the show cause notice and adjudicate upon, on the ground that the subject goods have been imported and cleared from the Customs at Bombay and it could be only the Collector of Customs at Bombay who is competent to initiate the proceedings and adjudicate upon the validity of the said import. Reference is made to the decision from the Tribunal in Singh Radio and Electronics v. Collector - 1988 (36) E.L.T. 713 (Tribunal) and Metro Exports v. Collector - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the invoices were duly attached to five Bills of Entry filed, and the clearances have been given by the Bombay Customs without any objection as to misdeclaration or as to unauthorised import of complete machines. He has submitted that M/s. R.P. Industries have also purchased some of the components for these machines from the local market and the transport documents show receipts of items at their factory. Referring to the invoices from Lunia Exports (P) Ltd. and SMG Associates (P) Ltd. as also the transport Receipts from the Transporters, he has submitted that these documents have been seized from their office, at the time of initial search and have been referred to even in the show cause notice, which rules out the probability of their subsequent fabrication. The ld. Advocate has then referred to the judgment from the Supreme Court in Dynamatic Hydralics Ltd. v. Collector, 1992 (58) E.L.T. 553 (SC) = 1992 (37) ECC 10 (SC) and of the Calcutta High Court in HCL Ltd. v. Union of India, 1992 (59) E.L.T. 507 (Cal.) = 1992 (40) ECC 257 (Cal.) to plead, that the Customs Authority have to merely examine whether the items imported are as per licence, and could not go beyond that and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Machinery. Five Bills of Entries alongwith the respective invoices produced show that under each of them, certain items, duly identified by their specific names, many of them in 10 numbers, have been imported. That these items are the components for Draw Texturising machines is not doubted. No evidence is led by the department to show that these items by themselves, could on assembly, bring into existence ten complete Draw Texturising Machines. Textile Machinery Experts does not appear to have been consulted for his expert opinion. On the other hand, R.P. Industries have produced two invoices dated 10-2-1986 and 12-2-1986, of Lunia Exports (P) Ltd. and one invoice dated 24-10-1985, from SMG Associates (P) Ltd. to show local purchases of some items which also go for manufacture of Draw Texturising Machines. All these local purchases of components are either after or during the period, when subject items were being imported. The transport receipts issued by M/s. Suresh Transport Co., for transport of material purchased from Lumia Export (P) Ltd. to M/s. R.P. Industries at Daman Industrial Estate near Vapi are also produced. Significantly all these documents are recovered from the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied the machines without undertaking any process at their factory would not survive. Besides that , there is evidence in the nature of Invoices from the local suppliers and Transport Company to show that the components for the machines have gone to the factory of M/s. R.P. Industries at Daman. Though the oral version as given by Mr. R.P. Mehta as also Mr. M.M. Manglic provide some room for grey area, the documents show the contrary. The machines are of the size, where removal in completely assembled condition may not be plausible, and hence, merely because, they are removed in CKD or SKD condition to the site where they have been installed, by itself, could not lead to drawal of a conclusion of non-compliance with the import condition. The situation as it exists here, thus, clearly entitles the importers to get the benefit of doubt and the order of confiscation of machines vide Section 111(o) of the Act requires to be set aside. That part of the Order-in-Original is therefore set aside. 14. When the main allegations as to unauthorised importation is not sustainable, the role allegedly played by the other individuals cannot tantamount to attracting the provisions of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
