1990(04)LCX0047
BEFORE THE CEGAT, WEST REGIONAL BENCH, BOMBAY
Shri P.K. Desai, Member (J)
SANMUKH SINGH SETHI
Versus
COLLECTOR OF CUSTOMS
Order Nos. 620-626/90-WRB, dated 5-4-1990 in Appeal Nos. C/565/88, C/796/88, C/885/88 to C/889/89.
Advocated By : Shri D.J. Dalal, Advocate, for the Appellants.
Shri K.M. Mondal, S.D.R., for the Respondents.
[Order]. - All these appeals have a common question involved and hence with consent from both the sides, they are heard together, and are disposed of by this common order.
2. Appeal No 565/88 is directed against the Order-in-Appeal No 1071S 88 BCH dated. 24-2-1988, where the articles of which clearance is not permitted under OGL are (i) Pneumatic sealer and (ii) Pneumatic Tensioner. Appeal No. 697/88 is directed against the Order-in-Original No. S/10-113/88 ACCII-A dated 15-1-1988 where items are (i) pneumatic sealer and (ii) pneumatic combination tool. Appeal Nos. 885/88, 886/88, 887/88, 888/88 and 889/88 are directed against the common Order-in-Appeal No 2755/88 BCH dated 18-7-1988 where in the Appeal Nos. 885/88 and 886/88 the items involved are pneumatic tensioner, in Appeal No. 887/88 and 889/88, the item involved is pneumatic tool and in appeal 889/88, the item involved is pneumatic sealer.
3. The appellants here on various dates, but during the policy period 1985-88, imported amongst others, the aforesaid items and sought clearance as items falling within OGL, by virtue of Entry No. 549 (10) of List 8 of Appendix 6, of the Policy 1985-88 AM. The clearance was initially objected to and ultimately refused, vide orders referred to above, on the ground that they were not the “Hand Tools”, but were the “Machines” not falling within the OGL category, and were not importable without valid licences in that regard.
4. It does not appear necessary to go in details as to the history of adjudication proceedings, in this regard, suffice it to mention that both the adjudicating authority and the appellate authority have taken the view that the items being “pneumatic” and not “Hand Tools” are not importable under OGL.
5. Shri D.J. Dalal, the learned advocate, appearing for all the appellants, submitted that the items imported are merely tools and referring to the circular No. 80/85 dated 18-8-1987 of the Dy. Controller of Import and Export, submitted that all the tools, falling within Entry No. 549 (10) List 8 of Appx. 6 of the Policy, were importable under OGL. He further submitted that as per the said entry, all the tools, except those enlisted in Appendix 3 Part A of the Policy would stand covered under the said entry 549 (10), and pleaded that the items imported are not enlisted in Entry No. 590 of Part A of Appx. 3. He also pleaded that pneumatic nature of the tools, does not basically change the nature and make the tool as machine, as the dictionary meaning of the “pneumatic” conveys use of wind or air as pressuring device, in place of manual pressure required tote given to “non pneumatic” tools of the same type. He also submitted that even Collector (Appeals) has classified the items in question as falling within TI 8467, which deals with tools and not the machine. In his submission, therefore, the findings arrived at by authorities below should be set aside and import may be allowed under OGL.
6. Heard Shri K.M. Mondal, the learned SDR, who supported the findings of the authorities below.
7. Reading the Order-in-appeal, passed by the Collector of Customs (Appeals) he has classified the items under consideration, as pneumatically operated hand tools, falling under Heading 8467.19 of the Customs Tariff Act, and has also held that the classification under Heading 8422.10 given by the Department, was not correct. The Department has not challenged this aspect. Heading 8467.19, reads thus “Tools for working in the hand, pneumatic or with self contained non electric motor”. It has to be noted that the same pertains to “tool” and not the “machine”. Now that the department has not challenged that finding, either by way of filing any appeal or cross objection, it has to be presumed that the department has accepted the said classification. When the items imported have, thus, been treated as “tools” and not the machines, non clearance thereof on the ground that they are machines, obviously cannot be sustained. On the contrary, one fails to understand as to how the Collector of Customs (Appeals), having held as mentioned above, in the earlier part of his order, has subsequently drawn the conclusion that the items are “machines”. The findings arrived at by the Collector of Customs (Appeals) under the circumstances, cannot be sustained.
8. The Collector of Customs, Air Cargo Complex, Bombay, has, though not drawn the conclusion as aforesaid, refused clearance, relying upon explanation to the Heading 84.22. It is not clear as to which explanation he is referring to and that the same is applicable.
9. In any case, when the items are not classifiable as “machines” and are held as “tools” the only question that remains to be examined is whether their import under OGL is permissible vide Entry No. 549 (10) of List 8 of Appendix 6 of Policy AM 1985-88. Reading the same entry it is clear that all the Hand Tools, which include pneumaticlly operated tools, classifiable under T.I. 8467.19 are importable under OGL unless they are specifically listed in Appendix 3 Part A Entry No. 590 in Appendix 3 Part A deals with tools. In 27 items listed therein, the items imported by the appellants are not included. When there is no specific inclusion the inference that can be drawn is that they are importable under OGL vide entry 549 (10) of list 8 of Appendix 6.
10. Under the circumstances, the items imported are nothing but the tools, which instead of manual force, are operated on pneumatic force and they are not excluded from Entry 549 (10) of list 8 of Appendix 6 of Policy AM 1985-88 and import thereof is permissible without any specific licence.
11. The appeals are therefore allowed, and all the orders appended against are set aside. The import of the items are allowed under OGL. Consequential relief to follow.
Equivalent 1990 (50) ELT 260 (Tribunal)