Commissioner of Customs (Prev.), Calcutta vs Anoop Kumar>1998(04)LCX0211

1998(04)LCX0211

IN THE CEGAT, EASTERN BENCH, CALCUTTA

Smt. Archana Wadhwa, Member (J)

COMMISSIONER OF CUSTOMS (PREV.), CALCUTTA

Versus

ANOOP KUMAR

Order No. R-347/CAL/98, dated 3-4-1998 in Reference Application No. 158/97 in Appeal No. C/1/97

Advocated By : Shri R.K. Roy, JDR, for the Appellant.

S/Shri O.P. Chowdhury, Advocate along with S.R. Dutta Consultant, for the Respondent.

[Order]. - The Revenue has filed the captioned Reference Application for referring the following questions to the Honourable High Court of Calcutta, arising out of the CEGAT’s Order No. A-684/CAL/1997, dated 30-5-1997 :-

“1. In the facts and circumstances of the case and also in view of the grounds enumerated below, the first question of Law to the decided is as to whether or not the Import Trade Control Licence produced by the importers is eligible for import of the goods in question which are not listed in the Appendix of the Handbook of procedure, 1st April, 1992 to 31st March, 1997 (Volume-I) and therefore not covered by the said Licence.

(ii) The second question of Law is whether there is any scope for applying the common parlance test to arrive at the right identity of the goods in question for the purpose of Licence coverage when the item undisputable falling under Tariff Heading No. 9503.90 is consumer goods and hence not covered by the licence produced by the importers.

(iii) The third question of Law is whether there was any scope on the part of the importers to form a bona fide belief and to entertain a reasonable doubt that the goods Walkie Talkie toys in question were importable against the Special Import Licence when Appendix XXXV of the Handbook of procedure 1992-97, listing out the items eligible for import, prepared by the law framers did not include those goods at all.

(iv) The fourth question of Law is whether or not a judicial pronouncement based on assumption and presumption is maintainable in law."

2. Arguing on the Application, Shri R.K. Roy, learned JDR reiterated the Grounds made in the said Reference Application and submitted that the Court had passed an Order with the following remarks :-

“Even if presuming for a second that the goods are not importable under the Special Import Licence produced by the appellant, nevertheless going by the common parlance test the electronic toys and games would stand covered by the licence in question as there could be a bona fide belief on the part of the appellant to entertain a reasonable doubt that the goods walkie talkie toys in question were importable against the special Import Licence.”

He, further, submitted that the Order could not be passed on presumption. As such, he prayed for drawing the Statement of facts for referring the questions to the High Court for determination.

3. Shri O.P. Chowdhury, learned Advocate along with Shri S.R. Dutta, learned Consultant appeared on behalf of the respondent firm and filed a written submission on record. They submitted that the said Order of the Tribunal is a detailed Order, considering and appreciating the entire evidence on record as also the relevant provisions of the EXIM Policy, he submitted that no question of law as such arises for referring to the High Court, inasmuch as there was no ambiguity in the Tribunal’s Order.

4. As regards the paragraph referred to by the learned JDR, he submitted that the entire paragraph has to be read as a whole and a part thereof, cannot be made the basis for drawing a conclusion that the entire Order was passed on presumption and assumption.

5. I have considered the submissions of both sides. From the Order in question, I find that the short question to be decided therein was as to whether the Special Import Licence granted to the respondents was wide enough to import the battery-operated walkie talkies classifiable under Heading 9503.90.

6. The Revenue’s contention was that as the goods were restricted items, a licence covering the same was required to be produced by the respondents herein. The contention of the Revenue was not accepted by the Bench in the Tribunal’s Order dated 30-5-1997, on the basis of the fact that a Special Import Licence was issued to the respondents herein for importation of items listed in Appendix XXXV of Handbook of Procedures and the said Appendix was amended subsequently, covering the specified items required to be listed by the Director General of Foreign Trade as per the requirement of foot-note under Para 156 of the EXIM Policy. The said specified items would be in columns 3 to 5 of the book titled “ITC (HS) Classifications of Export and Import Items”. The said book having been published subsequently described the items as electronic games/toys against column 2 under Chapter 95 and against column 5 under the Heading, `Public Notice’, it was mentioned as “Import permitted against Special Import Licence.” Taking all these facts into consideration, it was held that the goods in question were covered by the special Import Licence issued to the respondents herein. The Revenue’s reference to the paragraph from the said Order of the Tribunal dated 30-5-1997, for their grievance that the Order had been passed on the basis of assumption and presumption, is not correct inasmuch as the entire paragraph which discusses the legal position and the evidence on record has to be read as a whole and a few lines out of the same cannot be extracted and read separately and be made the basis for referring the matter to the High Court.

7. Paragraph 5 which deals with the submissions of both sides and discusses the legal position is reproduced below :-

“5. I have considered the submissions of both sides. The appellant in this case have not challenged the classification of the goods as falling under item 9503.90. There is also no dispute that the appellants have imported the said items under a special import licence issued by the licensing authority. In the said licence against the column description, it is mentioned as ”This licence is eligible for import of items listed in the Appendix XXXV of Handbook of Procedure 1st April 1992 to 31st March 1997 (Volume 1)". Even, considering the classification by the Commissioner as falling under 9503.90 and the items being a restricted item foot notes under para 156 referred to certain specified goods being importable under Special Import Licence. For looking into the specified goods as also in terms of the licence, Appendix XXXV has to be looked into. Appendix XXXV, as it stood at the relevant time, refer to columns 3 to 5 of the book titled ITC Classification of Export and Import Items published and notified by the Directorate General of Foreign Trade. Columns 3 to 5 under Chapter 95 allows electronic games/toys to be imported against Special Import Licence. In column No. 1 against such description of electronic games/toys, Exim code has been given as 9503.2000.10. However, I find that under the item description no specific Tariff Heading of Customs Tariff has been mentioned as was the case prior to amendment of Appendix XXXV in which Sl. No. 15 of the specified items gave a Heading 9503.20 against the electronic games and toys. From a comparative reading of the amended and unamended Appendix, it is apparent that prior to 1996 only, those electronic games/toys which was classifiable under 9503.20 could be imported against Special Import Licence. I also take not of the Supreme Court decision in the case of Akbar Badruddin Jiwani wherein the Hon’ble Supreme Court has held that even it Department’s case is accepted as regards the classification in respect of the articles imported by the appellant in that case, the burden still lies on the Customs Department to show that the appellant had acted dishonestly or contumaciously or with deliberate or distinct object of breach of law. In the instant case, I find that special import licence was obtained by the appellants for import of the items in question. The department has not been able to put on record any evidence to show that there was any mala fide on the part of the importers. Even if presuming for a second that the goods are not importable under the Special Import Licence produced by the appellant, nevertheless going by the common parlance test, the electronic toys and games would stand covered by the licence in question as there could be a bona fide belief on the part of the appellant to entertain a reasonable doubt that the goods walkie talkie toys in question were importable against the Special Import Licence."

8. From the above position, I observe that the Order had been passed by appreciating the legal position. There is no ambiguity in the provisions of law requiring any reference to the High Court. Accordingly, I do not find any question of law arising out of the said Order requiring any reference. The Reference Application is thus rejected.

Equivalent 1999 (107) ELT 497 (Tribunal)