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2009 (8) TMI 82

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..... aith on the said clarification and consequently the import, therefore, cannot be said to be illegal. In the light of that the impugned order in Original as also the Order of CESTAT are set aside - 3790 of 1990 - Dated:- 26-8-2009 - FERDINOI. REBELLO & D.G. KARNIK, JJ. Mr. H.C. Daruwala with Mr. Rahul P. Jain i/b. Crowford Bayley & Co., for the Petitioners Mr. P.S.Jetly with Mr. R.B. Pardeshi for the Respondents. [Judgment per FERDINO I. REBELLO, J.] - The 1st petitioner is carrying on business of manufacturing Precision Screw Gauges and are an export oriented company where 50% of their production is exported. For the purpose of manufacturing procedure Precision Screw Gauges they needed to import a second hand Plain Thread Grinding M .....

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..... er of Credit was extended firstly till 24th March, 1990 and subsequently on further request till 31st March, 1990. The petitioners by letter of 30th March, 1990 applied for further extension upto 30th April, 1990 as M/s.John Parker Machine Tools Ltd., U.K., were still not able to ship the said machine. 3. On 1st April, 1990 the new Import Policy for April, 1990 to March, 1993 was introduced. By this policy all secondhand machines were removed from the OGL List. The petitioners relied on para.9 of OGL Order No.2/8891 issued on 30th March, 1988 as further amended by the I.T.C. Order No.598891 dated 10th January7, 1990 the Import and Export Policy provided as under: 9. Shipment of machinery and equipment which are allowed for import under Open .....

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..... petitioners have already taken up the matter with the CCI and E, New Delhi the matter could be taken up with the Reserve Bank of India only after receipt of the concurrence of the ITC Authorities for an extension of the said Letter of Credit. Further correspondence ensued. Thereafter by communication of 26th June, 1990 the Deputy Chief Controller of Imports and Exports, New Delhi informed the 1st petitioners that their views had already been communicated to the 1st petitioners bankers whom the 1st petitioners should contact. In the said letter it was stated as under: the matter has been examined and the permission is hereby granted for the extension of Letter of Credit No.NIAR25747 dated 26th February, 1990, established with the Union Bank .....

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..... unauthorised and, therefore, purported to confiscate the goods under Section 111(d) of the Act and purported to impose a fine in lieu of confiscation of Rs.77 lacs. However, having regard to the facts the Respondents did not think fit to impose any penalty on the 1st petitioner. The petitioners have further contended that under para.24(1) of the Import and Export Policy April 1988 to March, 1990 it is specifically set out that interpretation given to the Import Policy by the CCI and E in the matter of interpretation of Policy and procedure would be final and would prevail over the clarification given by any other authority and person in the same matter. 7. It is the case of the petitioners that based on the clarification issued by CCI and .....

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..... nt period in L.C. was granted on 26th June, 1990. It is then set out that the respondent No.2 has correctly held that extension of further six months in the case given by Licensing Authority is not in order as it is a fresh commitment and, therefore, clarification from C.C.I and E is of no help to the petitioners. It is not necessary to advert to the other averments in the reply. 9. Substantial time was taken to argue the effect of para.9 of the Open General License No.2/88 as also para. 8 of the General License 2/90 dated 30th March, 1990. We do not propose to reproduce the said paragraphs for the view to be taken in this petition. 10. Against the order in Original the Petitioners preferred an Appeal to CESTAT being Appeal No.C114/ 91BOM a .....

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..... ated 26th June, 1990 addressed to the petitioners herein. By the clarification the petitioners were informed that with the permission of the bankers to extend the Letter of Credit upto 30th September, 1990. In other words the authority in whom the power was conferred to issue a clarification understood the policy to mean and understand that if an importer satisfied the requirements of the Import and Export Policy April 1988 to March, 1991 and the Open General Licence No.2/88 even if a new import policy had come after Import and Export Policy April, 1988 to March, 1993 the clarification given would be binding on all authorities including the respondent No.2. 12. In our opinion in the circumstances it is not necessary for us to address oursel .....

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