TMI Blog2009 (8) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... , JJ Mr.V. Sreedharan with Mr.Jeetu Motwani i/b PDS Legal for the petitioner. Mr. P.S. Jetly with Mr.Rajinder Kumar for respondents. [Judgment per FERDINO I. REBELLO, J)]. - The petitioners held an Industrial Licence for setting up a plant in Bharuch District in the State of Gujarat for the manufacture of Alpha Olefins and its precursors and derivatives with a capacity of 35,000 Tonnes per annum, which hereinafter is referred to as "Industrial Plant". For the purpose of setting up the Industrial Plant, the petitioners required various capital goods, raw materials, components, instruments, tools, consumables, packing material etc. At the relevant time, such imports were eligible for concessional custom duty under Ch. SH 98.01 of the Customs Tariff Act 1975 read with Notification No.131/85 dated 19 th April 1985 and the Project Imports Regulations 1986 (hereinafter referred to as "Regulations"). 2. Under the Regulation, the petitioners were required to get the contracts entered into with the the foreign suppliers, registered with the Customs House through which said goods were to be imported in the manner stipulated in the said Regulations. The petitioners accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said goods imported may be allowed to be cleared on payment of usual Customs duty under the respective Tariff Heading on the strength of the same REP licence under the flexibility provisions. However for grant of concessional rate of duty under Project Import and for seeking assessment of imported goods under Tariff Heaing 98.01 of CTA, the tariff provisions are relevant as the imported goods require Import Trade licence. The import licence has to be produced by the importers for claiming assessment under Heading 98.01 of CTA at concessional rate of duty. It is the stand of the Respondent that consequently they were right in informing the petitioner that benefit cannot be allowed under REP licence. 4. The short question therefore that we are called upon to consider is whether considering Regulation 5(4), was it open to an importer to import capital goods and other goods for setting out a Project Import Scheme and in such an event whether the same would be covered by tariff entry 98.01. 5. To answer the issue we may gainfully refer to the Regulations of 1986 which are known as the Project Import Regulations 1986. Section 2 of the Regulations sets out that these regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application shall be accompanied by the original deed of contract together with a true copy thereof, the import trade control licence wherever, required specifically describing the articles licensed to be imported or an approved list of items from the Director General of Technical Development or the concerned sponsoring authority, in the case of imports covered by Open General Licence or imports made by Central Government, any State Government, statutory Corporation, public body or Government undertaking run as a joint stock company. 6. The respondents for the purpose of import frame the policy extending the availing benefit of flexibility in importation of goods against REP licence. We may extract the relevant portion of that policy. Paragraph 177 of the Import Policy AM 198891: "177. (1) Within the above flexibility, the REP licenses can be utilised for import of items listed in Appendices 3 Part A, 3 Part B and 5 Part A of this policy subject to the following conditions: (i) Import of a single item shall not exceed 10% of the overall flexibility, subject to a maximum of Rs. 10 Lakhs; (ii) In case 10% of the flexibility, as per subpara (i) above, works out to an am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitated as can be seen from the Budged Speech of 1965 of the Minister of Finance. We may gainfully reproduce the relevant portion of that speech "There have often been complaints that the Import of equipment by the project is impeded as a result of meticulous assessment at the appropriate rates of each constituent item required for setting up the project. I now propose to introduce a new tariff item to cover the import of equipment needed for the initial setting up of new projects or for undertaking substantial expansions of existing projects, in the fields of industry, power, mining and prospecting for minerals oil. Not only complete equipment but also component parts and raw materials imported specifically for fabricating equipment within India for a project, and some quantity of initial stock of spare parts and other stores needed for the maintenance of the project can be imported under this item. The contract or contracts would have to be registered in advance with the Customs authorities and a provisional assessment will be made immediately, obviating to the maximum possible extent the need for detailed assessment of individual lots, after the goods arrive. The equipment imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r otiose. The language whether any primary or secondary legislation normally should not be treated as superfluous. The intent of the legislature must be given its due meaning. The object is import under the policy. The contract has to be registered. The licence is a requirement. Both REP licence and Import licences are licences issued by the same authority. The only distinction is in the import licence. The various items would be described as seen in the annexures annexed by the respondent to their reply. In so far as REP licence is concerned, no such description is given as that licence is issued under different circumstances and is transferrable and can be used either as replinshment licence or for import of any other capital goods and the like. Obviously in such circumstances, REP licence can never include any item. That is why under paragraph no.177 Reference is made to items listed in Appendices 3 Part A, 3 Part B and 5 Part A. If so seen the expression "wherever required" would have to be read in the context that in a case where a person seeks to import licence or a REP licence then there is no need for Import Trade Control Licence. The expression "specifically describing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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