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Collector of Customs Vs. Mitsuny Electronic Works - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberF.M.A.T. Nos. 740-742 of 1984
Judge
Reported in1989(24)ECC312,1987(30)ELT345(Cal)
ActsCustoms Act, 1962 - Section 108; ;Imports (Control) Order, 1955; ;Constitution of India - Article 134A
AppellantCollector of Customs
RespondentMitsuny Electronic Works
Appellant AdvocateDipankar Ghosh, ;J.N. Ghosh and ;S.K. Chatterjee, Advs.
Respondent AdvocateAsoke Sen, ;Somnath Chatterjee, ;Ajit Kumar Panja and ;Goutam Mitra, Advs.
Excerpt:
imports and exports control - additional licence--rep licence--open general licence--petitioner manufacturer of t.v. sets--purchase of components from three export houses on high sea sale basis--all consignments arriving at same time--customs authorities holding that petitioner imported t.v. sets in ready-to-assemble condition--not tenable--plastic moulded parts and plastic moulded parts - front and back covers--fall under appendix 5 of 1982-83 policy--picturetubes covered by sl. no. 500 of appendix 5--those goods covered by additional licences--department claiming that export houses transferred additional licences and did not actually import goods-wrong on facts--export houses eligible to dispose of good imported against additional licences as per para.186 read with para. 185 of 1982-83.....ajit kumar sengupta, j.1. these three applications have been moved by the customs authorities for stay of the operation of the ex parte interim orders dated 7th march, 1984 passed by a.k. janah, 3. in three separate writ petitions in identical terms directing the customs authorities to make assessment of the goods covered by several bills of entry submitted by the clearing agents within three days of the receipt of the order and release of the goods forthwith. all the aforesaid three applications were moved by m/s mitsuny electronics works, a proprietary concern of one tapan kumar chatterjee. these three applications are heard together as the issues involved are identical. elaborate arguments have been made on behalf of the customs authorities as well as the writ petitioner and our order.....
Judgment:

Ajit Kumar Sengupta, J.

1. These three applications have been moved by the Customs Authorities for stay of the operation of the ex parte interim Orders dated 7th March, 1984 passed by A.K. Janah, 3. in three separate writ petitions in identical terms directing the Customs authorities to make assessment of the goods covered by several bills of entry submitted by the clearing Agents within three days of the receipt of the order and release of the goods forthwith. All the aforesaid three applications were moved by M/s Mitsuny Electronics Works, a proprietary concern of one Tapan Kumar Chatterjee. These three applications are heard together as the issues involved are identical. Elaborate arguments have been made on behalf of the Customs authorities as well as the writ petitioner and our order on the said three applications will dispose of not only the three stay applications and the appeals filed by the Customs authorities but the three writ petitions as well.

2. On or about 21st January, 1984, the vessel 'SS Rameno Everette' arrived in the Port of Calcutta. 13 Bills of Entry covering the aforesaid three cases were submitted by the three Export Houses being M/s Siewert & Dholakia (P) Ltd., M/s F. Ahmed & Co. and M/s Mallik & Co., with the Customs authorities. The articles sought to be imported by the said three Export Houses are alleged to be covered partly by the Additional Licences and partly by REP licences.

3. The articles which are sought to be imported under the Additional Licences in the aforesaid three cases are Picture Tubes, Plastic Moulded Parts, Plastic Moulded Parts - front and back covers, Electronic Tuners, Remote Control and Colour Picture Tube. The articles sought to be imported under the REP licences are Printed Circuit Boards, Transformer including Audio/Video Printed Circuit Board, Tuners, Speakers and Deflection Wires.

4. The Additional licences in respect of the import of the said articles are governed by the Import Policy of 1982-83. The REP licences are governed by 1983-84 Import Policy.

5. The case of the Customs authorities is that on or about 21st January, 1984, the vessel 'SS Rameno Everette' arrived in the Port of Calcutta. Several Bills of Entry were submitted by M/s M. Dutta Agency on behalf of the three Exporters viz., M/s F. Ahmed & Co., M/s Siewert & Dho'lakia (P) Ltd. and M/s Mallik and Co. It was stated in the said Bills of Entry that the goods covered by the said consignments were imported under para 186(9) of the Import Policy for the year 1982-83. But the said M. Dutta Agency also produced three separate Additional Export House Licences granted in favour of the said three importers. Upon receipt of the Bills of Entry necessary instructions were issued by the Customs Authorities for inspection of the goods. In the course of inspection, it is alleged, it transpired that the goods imported under the Licence of M/s. F. Ahmed & Co. were mixed up with the goods imported under the licence of M/s Siewert & Dholakia (P) Ltd. It is further alleged that it also transpired the articles imported under the licence of the said two importers viz., M/s F. Ahmed & Co. and M/s Siewert & Dholakia (P) Ltd. are 107 complete Colour T.V. sets of 26' in ready-to-assemble condition, whereas the articles imported under the licence of M/s Mallik & Co. are 50 Colour T.V. sets of 20' in ready-to-assemble condition. The articles are appearing in Appendix 3, serial No. 509 of 1982-83 policy and as such not permissible for importation under the said Additional Export House Licences. Hence, according to the Customs authorities, the goods prima facie appeared to be prohibited goods under Clause 3(3) of the Import (Control) Order, 1955 necessitating adjudication proceedings in accordance with the provisions of the Customs Act. It is further alleged that investigation was made and the statements of several persons including Proprietors/Directors of M/s F. Ahmed & Co. and M/s Siewert & Dholakia (P) Ltd. were recorded under Section 108 of the Customs Act, 1962. It is alleged that the licence holders were not the actual importers and they had only allowed their names to be utilized for importing the goods. The real importer appears to be one Shantibhai Maggia who had imported the goods in question covered by several Bills of Entry submitted by M/s M. Dutta Agency. From the documents seized, it is alleged, it is apparent that the Additional Licences had been transferred for consideration. It is further alleged that prior to 8-3-1984 neither any document was filed nor any representation was made to the Customs Authorities that a part of the imported articles are also covered by REP licences or any other licences held by the importers at the time of importation or clearance or that the writ petitioner had purchased the goods on 'High Sea Sale' basis. It is only in the writ petitions filed by the writ petitioner on 8th March, 1983 it has been stated that a part of the goods are covered by REP licences and the writ petitioners had purchased the goods on 'High Sea Sale' basis from importers. It has been further alleged that while the matter was before this court, the REP licences were submitted to the Customs authorities on 15th March, 1984. In this context, it is alleged, the Customs authorities were therefore justified in withholding the clearance of the goods as the goods imported and sought to be cleared were not covered by the Additional Licences mentioned in the Bills of Entry. The articles imported are not also covered by the REP licences. On the other hand, it has been alleged by the writ petitioner that the articles sought to be imported are fully covered by the Import Licences and as such there is no question of any further adjudication. The said articles have been imported by three separate and independent Export Houses under different licences. Separate Bill of Entry was submitted for each consignment under each Bill of Lading and Invoice by each of the Export Houses. In the circumstances the question of assembling the articles imported separately and assembling them at place and thereby making a complete T.V. sets by the individual Export House does not and cannot arise. The allegation of mixing up of the goods has been denied. On the contrary, it has been alleged that by a letter dated 14th February, 1984 addressed to the Assistant Collector of Customs by the Clearing Agents, it was declared that some consignments of M/s F. Ahmed and Co., and M/s Siewert & Dholakia (P) Ltd. were mispacked and request was made to examine the goods and to segregate the packages as per invoices, packing lists and Bills of Entry. As a matter of fact, the goods have been segregated by the Customs authorities as per the Bill of Entry in the presence of the officers concerned. It is the case of the writ petitioner that Export House can import parts and accessories even if when put together, they would make a complete Television Set. Shantibhai Maggia is not the importer and the Export Houses, remittance of foreign exchange has been done by the Export Houses. The papers for Customs clearance have also been filed by the Export Houses. All import documents namely, Invoice, Packing List, Certificate of Origin, Bill of Lading, Marine Insurance Policy etc. are in the name of Export Houses duly issued by the foreign shippers and the shipping agency. The said documents have also been negotiated and retired by the Export Houses through their respective bankers. High Sea Sale Agreements were made by the Export Houses with the writ petitioners. According to the said Agreements, the Customs duties have to be paid by the writ petitioner and he has to bear the costs and expenses of the clearance of the goods. It is the further case of the writ petitioner that for ulterior motive the consignments in these three cases are not allowed to be cleared although they are covered by the licences. The Customs authorities have allowed clearance of identical goods against identical licences in respect of other Export Houses. It is the case* of the writ petitioner that the learned trial Judge rightly directed the release of the goods upon payment of the duty to be assessed.

6. The first contention of Mr. Dipankar Ghosh for the Customs authorities is that if all the consignments covered bv all the bills of entry in the case of three export houses are assembled together, there will be complete T.V. Sets and as such their import is prohibited. Such a course, however, cannot be adopted to find out whether individual licence covers the goods imported. It is a sheer coincidence that all the consignments have arrived at a time. One has to look into the respective licence. The writ petitioner may have purchased all the articles covered by all the licences but that cannot be a ground for withholding the goods alleging that complete T.V. Sets have been imported. We are, therefore, unable to accept this contention of Mr. Ghosh. 7. Mr. Dipankar Ghosh, the learned Counsel appearing for the Customs Authorities has then contended that para 186(9) which applies to the Additional Licences does not permit importation of goods mentioned in Appendix 3. Therefore, the goods are not covered by the Additional Licences. In any event, articles like Printed Circuit Boards with Transformers, Speakers etc. are not covered by para 186(9). To appreciate the contention of Mr. Dipankar Ghosh, it is necessary to set out the relevant paragraph of the Import Policy. Para 186(9) of the Import and Export Policy of 1982-83 provides as follows:-

'186(9). Additional Licences will also be valid for import of spares of the items falling under following Heading Nos. of Schedule 1 to the Imports (Control) Order, 1955:-

84.12 84.51 85.18

84.15 84.52 85.19

84.22 84.53 85.20

84.24 84.54 85.23

84.25 85.06 85.24

84.32 85.07 87.01

84.33 85.08 87.02

84.35 85.09 87.03

84.41 85.12 Chapter 90

84.47 85.15 Chapter 91

Chapter 92

The import of these spares shall be subject to the condition that (i) the c.i.f. value of the spares imported shall in all not exceed Rs. two lakhs per Export House, within the value of the Additional Licence and (ii) items appearing in the Appendices 3, 6, 15 and 30 shall not be allowed. The value limit of Rs. 2 lakhs will be Rs. 5 lakhs in the case of export houses referred to in sub-para (6) above.'

8. It is not in dispute that item 85.15 of the Schedule 1 of Import (Control) Order, 1955 is relevant in this context. The said Item 85.15 is to the following effect:-

'85.15 Radiotelegraphic and radiotelephonic transmission and reception apparatus, radio-broadcasting and television transmission and reception apparatus (including receivers incorporating sound recorders or reproducers) and television cameras radio navigational aid apparatus radar apparatus and radio remote control apparatus.'

It appears that only prohibition under para 186(9) of the Import and Export Policy of 1982-83 read with 85.15 of the Schedule 1 to the Import (Control) Order, 1955 is that items appearing in Appendices 3, 6, 15 and 30 shall not be allowed to be imported. Therefore, items falling in any other Appendix will be allowed to be imported under Additional Licences. Plastic Moulded parts and Plastic Moulded partsfront and back covers fall within Appendix 5 of the Import Policy of 1982-83 at Serial No. 500 which is to the following effect:-

'500. Plastic extruded/moulded components'

Similarly, Picture Tubes come under item 6 of Appendix 8 which is to the following effect:-

'6. T.V. Picture Tubes/CRTS for Television Sets (all types)'.

Thus the aforesaid articles i.e. Plastic Moulded parts etc. and picture tubes are covered by the Additional Licences. Mr. Ghosh has not seriously disputed that the Additional Licences covered. the aforesaid items. He, however, contends that the Additional Licences are not transferable and in this case Additional Licences had been sold and not the goods covered by the Additional Licences. On the facts of this case, we are unable to hold that the Additional Licences had been transferred. The Bills of Entry were produced before us. The Bills of Entry were endorsed by the Export Houses. The statement of the writ petitioner that the documents had been negotiated and retired by the Export Houses through their respective Banks and the High Sea Sale agreements were signed and executed by the Export Houses had not been controverted. The Customs Authorities relied on a statement of one Mr. D.K. Shah contained in his letter dated 19th December, 1983 to show that the name of the Export House M/s F. Ahmed & Co. was sought to be utilised, but the Agreement by the said Export House with the writ petitioner was made after the said alleged statement. Although the Export Houses have been made respondents to the present proceedings before this court, no notice appears to have been served on them. The Export Houses have not come forward to support the contentions of the Customs Authorities. On the contrary, they must be bound by their acts which are evident from the endorsement of the Bills of Entry and the manner in which the documents had been negotiated and agreements were entered into with the writ petitioners. It has also not been denied that the Export Houses had duly received the consideration for the sale of the goods covered by the said Additional Licences. That apart, in view of proviso to Clause 5(3) of the Imports (Control) Order, 1955, the said contention of the Customs Authorities has no substance. The relevant clause is set out hereunder:-

'3. It shall be deemed to be a condition of every such licence that:-

(i) no person shall transfer and no person acquire by transfer any licence issued by the licensing authority except under and in accordance with the written permission of the authority which granted the licence or of any other person empowered in this behalf by such authority.

(ii) that the goods for the import of which a licence is granted shall be the property of the licensee at the time of import and thereafter upto the time of clearance through Customs.

Provided that the conditions under items (i) and (ii) of this Sub-clause shall not apply in relation to licences issued to the State Trading Corporation of India, the Minerals and Metals Trading Corporation of India and other similar institutions or agencies owned or controlled by the Central Government and which are entrusted with canalisation of imports.

Provided further that the conditions under items (i) and (ii) of this Sub-clause shall also not apply in relation to (a) Ticences issued to eligible export house or trading houses for import of goods meant for disposal to actual users under the import policy for registered exporters, and (b) licences issued to public sector agencies owned or controlled by Government, Central or State for disposal of goods to Actual Users under the import policy in force.'

9. Mr. Ghosh has relied on paragraph 383(2) of the Hand Book of the Import-Export Procedures 1983-84 in support of his contention that Export Houses are not allowed to appoint agents or issue letters of authority for operating the licence or for distribution of imported goods on their behalf. Apart from the fact that the Export Houses have themselves taken steps for import of the goods by placing the order, by negotiating documents with the Banks, by submitting the Bills of Entry and by executing the agreement for sale of the articles in question, the said restriction as enjoined by paragraph 383(2) must be read with the aforesaid proviso to Clause 5(3) of the Imports(Control) Order, 1955.

10. Paragraph 186(10) of 1982-83 Policy provides that goods imported by Export Houses against Additional Licences will be disposed of by them in the same manner and subject to the same condition as laid down in paragraph 185.

11. Paragraph 185(11) provides that raw materials and components imported by Export Houses may be disposed of by the Export Houses to the actual user. Paragraph 185(c)(iii) provides that spares may be disposed of to any person. Therefore, raw materials, components and spares imported under paragraph 186(9) under the Additional Licences can be disposed of to the actual users or any other person as the case may be. It is not in dispute that the importers are registered Export Houses and the Articles imported had been sold to the writ petitioner who is an actual user of the items imported. The writ petitioner is the manufacturer of television set. In that view of the matter, the restriction regarding the transferability of the Additional Licences in any event, will not apply in this case.

12. It may be mentioned that various instances have been cited by the writ petitioner where T.V. Picture Tubes and Plastic Moulded Parts have been released by the Customs Authorities being covered by paragraph 186(9) of the Import Policy of 1982-83. As a matter of-fact, in the case of one of the Export Houses who is a party in this proceeding viz., M/s Mallik & Co., the Customs Authorities have allowed import of Picture Tubes and Plastic Moulded parts against the very same licence which is the subject matter of the present proceeding. Further, Colour Picture Tubes have been allowed to be cleared in the same case of M/s Telerama (I) Ltd. under the Additional Licence dated 22nd October, 1982 covered by 1982-83 Policy. In the case of M/s Magnam Enterprise, Colour Picture Tubes had been released by the Customs Authorities in February, 1984 against the Additional Licence. From the Bill of Entry, it is apparent that the Colour Picture Tubes along with deflection wires had been released as parts of television. As a matter of fact, the said Articles have been released as spares by Collector of Customs in File No. S.60(VII)-99/84A. Further, the Customs Authorities on or about 12th December, 1983 had passed 80 pieces of Colour Picture Tubes with yoke and coil and 80 pieces of front cabinet under paragraph 186(9) of the Additional Licence under Import Policy of 1982-83 in favour of M/s Sourab. Xerox copies of certain Customs passed Bills of Entry for T.V. Picture Tubes and Plastic Moulded parts cleared under paragraph 186(9) have been produced and relied on by the writ petitioner in support of his contention. The said fact was not and could not be denied by the respondents. We, therefore, fail to understand why in the case of the petitioner the same treatment shall not be given in respect of the T.V. Picture Tubes and Plastic Moulded parts.

13. The other two items sought to be imported on the strength of the Additional Licences are Electronic Tuners and Remote Control. It is the contention of the writ petitioner that even if these items imported do not fall under Appendix 3, the import of the same is permissible under O.G.L. under 1983-84 Policy. Paragraph 186(8) of 1983-84 Policy is to the following effect:-

'The additional licences will also be valid for import of Capital Goods listed in Appendix 2 and raw materials, components, consumables and spares (excluding items covered by Appendix 5) which have been placed as Open General Licence for Actual Users (Industrial). This facility will be subject to the same conditions as laid down in para 185 above, except that the endorsement referred to in sub-para 185(3) will not be required in the case of Additional Licences which are already non-transferable.'

Appendix 10 of 1983-84 Policy specifies the import of items under Open General Licence. The items at Serial No. 1 mentioned therein are as follbws - 'Raw materials, components and consumables (non-iron and steel items) other than those included in the Appendices 3, 4, 5, 8, 9 and 15. In other words, under the Open General Licence, an item can be imported against the Additional Licence provided the said item does not appear in any of the Appendices 3, 4, 5, 8, 9 and 15. Electronic Tuner is not mentioned in any of the said Appendices and as such it comes as an O.G.L. item'. Similarly under list 8 of Appendix 10, Part II, Serial No. 33, Microwave components of all types can be imported under Open General Licence. Remote Control is a microwave component. It can therefore be imported under Appendix 10 as an O.G.L. item.

14. Mr. Dipankar Ghosh has contended that Remote Control Gadget is a complete electronic equipment falling under Serial No. 563 of Appendix 3 and therefore it cannot be imported as O.G.L. item.

15. On a correct treading of the Appendix 10, we are, however, unable to accept the contention of Mr. Dipankar Ghosh. Remote Control does not appear in any of the Appendices 3, 4, 5, 8, 9 and 15 and as such- is covered by Appendix 10 as an O.G.L. item. Furthermore, Remote Confrol Gadget cannot be a complete electronic equipment. It is used as an accessory of Colour television. Component includes accessory or attachment in terms of paragraph 5(10) of 1983-84 Policy. It may be mentioned here that Remote Control has been passed by the Customs Authorities as O.G.L. item under Additional Licence as would appear from the copy of the Bill of . Entry dated 23rd September, 1983 in favour of M/s Indian Silk Industries, an Export House.

16. So far as the Electronic Tuner is concerned, Appendix 3, Item 56148) mentions T.V. Tuner, other than Electronic T.V. Tuner. Therefore, Electronic T.V. Tuner is not included in Appendix 3 or any of the other Appendices being Appendices 4, 5, 8, 9 and 15. That is why this item will also be governed by Appendix 10 as an O.G.L. item.

17. We are, therefore, of the view that the contention of the writ petitioner that the Remote Control and the Electronic T.V. Tuner are covered by Appendix 10 as O.G.L. items has substance. We are, therefore, unable to accept the contention of Mr. Ghosh that the said items are not covered as O.G.L. items. We shall however, deal later with the other confention whether such articles would be covered by REP licences or not.

18. The main objection of Mr. Ghosh is with regard to the items covered by the REP licences. Items covered by the REP licences are Printed Circuit Boards, Transformers, Speakers, Electronic Tuners and Deflection Wires. The REP licences are governed by 1983-84 Import and Export Policy which permit import of goods as mentioned in A.35(d) of Appendix 17 of 1983-84 Policy. Appendix 17 of the Import Policy of 1983-84 deals with the Import Policy for registered Exporters. Item A.35 is in the following terms:

------------------------------------------------------------------------------

Sl. Export Product. Import Materials Remarks.

No. replenish- permitted

ment per- for import.

centage.

-------------------------------------------------------------------------------

A.35 All Electronic 20% (a) Special produc- (1) The Register-

items/equipments/ tion aids for elec- ing authority for

systems/components tronics industry, cassettes/cartri-

including computer namely Wrapping & dges,Pre-recorded

systems/peripherals Unwrapping tools, Cassettes/Cartri-

Digital watches, aligning tools, dges and Pre-

clocks and time- desoldering tools, recorded Video

pieces. I.C. Extractor (20%) Cassettes will be

'the plastics and

linoleum Export

Promotion Coun

cil.

(b) Passive compon- (2) Against the

ents (Resistors/ export of case-

capacitors of all ttes/cartridges,

kinds) (30%) pre-recorded cass-

ettes/cartridges

(c) Active compon- import of audio

ents (Transistors, magnetic tapes

diodes other blank cassetes/

semi-conductor cartridges and

devices, valves, parts thereof will

cuits) (30%) be allowed with-

out any face

(d) Any other items value restriction.

of electronic Against the ex-

components and raw port of pre-record-

materials appear- ed video cassettes

ing in Appendix 3 import of video

and Canalised List magnetic tape

in the Import-Export will be allowed

Policy used in the without any face

manufacture of value restriction

electronics items within the overall

(20%) value of the lic-

ence.

(3) Against the

export of profe-

ssional electronic

equipment and

instruments imp-

ort replenishment

will be allowed at

the rate of 30%.

--------------------------------------------------------------------------------

19. The contention of Mr. Ghosh is that A.35(d) speaks of any other item of electronic components. The words 'any other' must be given a meaning and cannot be ignored. A.35(b), (c) and (d) all deal with electronic components. A.35(c) deals with active components such as transistors and diodes. A.35(d) deals with any other item of electronic components used in the manufacture of electronic items. It is the submission of Mr. Ghosh that the words 'any other' in A.35(d) must necessarily refer to electronic components other than those referred to in A.35(b) and (c). He, therefore, contends that in the present case what have been imported are not Printed Circuit Boards simpliciter, but these Printed Circuit Boards are specially fitted with passive components like resistors, capacitors (covered by A.35(b) and active components like transistors, diodes and, other semi-conductor devices valves, integrated circuits etc. (covered by A.35(c). These active and passive components are not covered by licence under A.35(d). This contention of Mr. Ghosh no doubt merits consideration. But having regard to the facts of this case, we are not called upon to decide this contention one way or the other. The fact remains that a printed circuit board is an item by itself, although it may contain both active and passive components mentioned in A.35(b) and (c). This is borne out by the fact that SI.No. 561(12) refers to Printed Circuit Board as an independent item. The argument of Mr. Ghosh would have been relevant had there been import of electronic components simpliciter as mentioned in Serial No. 561(20). When a printed circuit board is imported, one cannot say that there has been import of certain active components or passive components. Thus the contention of Mr. Ghosh on the facts of this case and having regard to the item in question cannot be accepted.

20. The next contention of Mr. Ghosh is that from the expression used in A.35(d) - 'Any other items of electronic components... appearing in Appendix 3 ... used in the manufacture of electronic items' it follows that a distinction has been made between 'electronic components' and 'electronic items'. What can be imported under the licence are only electronic components appearing in Appendix 3. It is his further contention that Serial No. 561(21) of Appendix 3 gives a complete list of electronic components for the purpose of the said Appendix. These are Diodes, Transistors, Thristors, Micro Circuits Connectors, Relays, Switches, Resistors, Capacitors and Electronic Tubes. Therefore, according to him, Printed Circuit Boards, Transformers, Speakers, Tuners, Deflection Wires etc. sought to be imported under the REP licence under A.35(d) are not 'electronic components' appearing in Appendix 3 and accordingly are not covered by REP licence. According to Mr. Ghosh, Printed Circuit Boards, Transformer, Speakers etc. are 'electronic items' included in Serial No. 561. The licence is for import of 'electronic components' which are used in the manufacture of electronic items. He, therefore, contends that under A.35(d) licence what can be imported are 'electronic components' used in the manufacture of 'electronic items'. In the context of A.35(d) itself, whether it be an assembly or sub- assembly, cannot be an electronic component. Therefore, according to him, only components which are used in the manufacture of such assemblies or sub-assemblies and not the assemblies or sub-assemblies themselves which can be imported. An electronic item whether it be an assembly or sub-assembly cannot be an electronic component-and as such cannot be imported 'electronic components' appearing in Appendix 3 have been defined and listed in Serial No. 561(21) of Appendix 3 itself and no other item can be imported as electronic components. It is his further submission that para 5(10) gives a general definition of 'component' and in that general definition the word 'component' will include an assembly or sub-assembly of which a manufactured product is made up and with which it may be resolved. Therefore, in interprecting A.35(d) the specific description/definition in Serial No. 561(21) of Appendix 3 is to be applied and the general definition of 'component of manufactured product' set out in paragraph 5(10) is inapplicable. That being so, sub-assemblies or assemblies are not 'electronic components' which are lawfully imported under A.35(d) licence. He submits that if the general definition of para 5(10) is applied, it would mean that the electronic component and electronic item of which it is part are one and the same thing which is meaningless and absurd. He has also referred to the definition of the words 'electronic components' which have a technical precise meaning in electronics and items listed as 'electronic component' in Serial No. 561(21) accords with technical meaning of electronic components. The electronic items include electronic components but the electronic item is not the electronic component. As only electronic components can be imported under A. 35(d) it is obvious that electronic items whether they fall under Serial No. 561(1) to (2) or Sl. No. 564 cannot be imported under the licence.

21. The real controversy, therefore, is whether A.35(d) covers the items which are sought to be imported by the writ petitioner. The contention raised by Mr. Ghosh although sounds attractive but on the interpretation of A.35(d) sucti contention cannot be accepted. The reasons are many. It is true that electronic components are parts of electronic items. Appendix 3 of 1983-84 Policy deals with raw materials, components, etc. A.35(d) not only speaks of electronic components, but also of new materials appearing in Appendix 3 used in the manufacture of the electronic items. It cannot be disputed that items like Printed Circuit Boards, Speakers, Electronic Tuners, Deflection Wires etc. are used as raw materials in the manufacture of a television set. In interpreting A.35(d), one cannot ignore the expression 'raw materials'. If the argument of Mr. Ghosh has to be accepted then the expression 'raw materials' has to be completely ignored. But entire Appendix 3 relates to both components as well as raw materials. Item No. 564 of Appendix 3 is in the following terms:-

'564. Kits/ready to assemble sets,assemblies,sub-assemblies, modules, and combination thereof all electronic items (excluding items mentioned in Appendix 5) appearing at Sr.No. 563 but excluding electronic discrete components (unless individually mentioned elsewhere in this Appendix.'

In our view, the said item will cover all the articles which are sought to be imported in this case by the three Export Houses. These are raw materials for the purpose of manufacture of Television sets.

22. The other contention of Mr. Ghosh that in interpreting A.35(d) the general definition of components in paragraph 5(10) should not be taken into account. It is difficult to accept this argument. Paragraph 5(10) is in the following terms:-

'10. 'Component' means one of the parts or sub-assemblies or assemblies, of which a manufactured product is made up and into which it may resolve and includes an accessory (or attachment).'

Having regard to the scope of Appendix 3 which covers both raw materials and components and having regard to the expression 'components and raw materials' is used in A.35(d) we are of the view that general definition of component should be applied in the instant case. Assemblies or sub- assemblies may in any given case come within the purview of electronic items. At the same time they may fall within the meaning of electronic components depending on the purpose for which they are meant. In this case the items sought to be imported are necessary for manufacture of T.V. Hence, although they are assemblies or sub-assemblies they are also components and must be held to be covered by A.35(d). Our attention was drawn to a Circular of the Minutes of the 4th Joint Weekly meetings held on 9th March, 1984 in the office of the Joint Chief Controller, Bombay which is circulated by the Deputy Collector of Customs and attested by the Assistant Collector of Customs. Para 326 of the Handbook of Rules and Procedures of 1983-84 provides that in order to help the importers in cases of genuine difficulties, a joint committee of Licensing and the Customs authorities has been set up at each Port. The committee meets regularly and deals with both pre and post importation enquiries and difficulties of importers. The said circular was issued for resolving the disputes whether electronic sub-assemblies are covered by the term 'any other item of electronic components' appearing against(s) under column 4 against Entry No. A.35 in Appendix 17 of the Import Policy Book of 1983-84. The relevant extract of the said Circular is dated 9th March, 1984 is set out hereunder:-

'POINT NO. I (WHETHER ELECTRONIC SUB ASSEMBLIES ARE COVERED BY THE TERM 'ANY OTHER ITEM OF ELECTRONIC COMPONENTS' APPEARING AGAINST (d) UNDER COLUMN 4 AGAINST E.NO. A.35 IN APPENDIX 17 OF AM-84 (IMPORT POLICY BOOK) NO. 155/8411.

BRIEF

23. M/s Standard Radio Corporation have imported Electronic Sub- Assembly for Wakb Car Cassette Player vide B/Entry No. 2650/49. Clearance is being claimed against Licence No. P/K/2980572 dated 14-12-1983. This is an REP licence against the product group A.35. Importer is claiming the clearance of the goods under sub-serial No. 'd' in Column 4 of the Appendix 17 against entry A.35. This reads as 'any other items of Electronic components and raw materials, appearing in Appendix 3 and canalised list in the Import-Export Policy used in the manufacture of Electronic items.' Electronic sub-assemblies are appearing in Appendix 3, Sl. No. 564.

24. Attention is invited to para 8 of Appendix 17. The objective of the REP licence is to provide raw material, component, etc. used in the manufacture of the goods exported. In this particular case what exactly the goods have been exported by M/s Indian Engineering Co., Bombay, is not known. However, the goods imported are identifiable part of Wako Car Cassette Player. Surely M/s Indian Engineering Co.. would have not exported the Wako Car Cassette Player. Hence the goods imported do not go into the manufacture of end-product. In view of above position, it is felt that the licence is not valid to cover the importation of the goods.

25. Attention is also invited to Entry 561 of Appendix 3. The main description reads as Electronic Items. One view is that the said entry in Appendix 17 allows only those raw material 'and components are covered by Sr. No. 561, and sub-assemblies are neither components nor raw material. However, the definition of components as given in policy included sub- assemblies or assemblies. Hence the other view is that even the sub-assemblies which are covered by Sr.No.561 of Appendix 3 are covered by the description given in sub-portion 'd'. This contention is also supported by the fact that the said entry in Appendix 17 does not indicate the Sr. No. 561 but it states goods appearing in Appendix 3.

26. Since the matter is not free from doubt, the case is referred to point Weekly Licensing for advice on both the points'.

'Para 2 of the Brief contains a query whether condition envisaged in para 8 of Appendix 17 has to be strictly followed. In this connection one committee felt that against E.No. A.35 in Appendix 17 the remarks 'Please see para 8 of General Condition in this Appendix' is absent under Column 5. Hence conditions of para 8 of Appendix 17 would not be applicable in this case.

Para 3 of the Brief spells out doubt whether the expression, 'Any other item of Electronic components' appearing against (d) under column 4 against E.No. A.35 in Appendix 17 of AM-84 Policy Book would cover exclusively discrete Electronic components or Electronic Subrassemblies also. The committee felt that item of Electronic components appearing in Appendix 3 can be imported in respect of whether the Electronic Component is discrete of sub-assembly. The Committee arrived at this decision by placing reliance on the definition of 'component' in Chapter 2 of Import & Export Policy 1984 Book and on the fact that electronic items appearing in Appendix 3 comprise both of discrete components as well as assemblies/sub-assemblies.'

27. From the aforesaid circular it is evident that the Customs Authorities have accepted that electronic items comprised both discrete components as well as assemblies being covered by A.35(d). There cannot be two different interpretation with regard to the scope of A.35(d) depending on which port the goods are unloaded for Customs clearance. It is also on record that the Chief Controller of Imports and Exports by a letter No. 7/9/83/EPC/2021, dated 6-8-1983 clarified that under A.35(d) of Appendix 17 of Import and Export Policy of 1983-84, electronic components and raw materials can be imported. On the basis of the said clarification the 'sub-assemblies' under Serial No. 564 can be imported under A.35(d) licence. In the premises, we are unable to accept the contention of Mr. Ghosh that A.35(d) will not cover the articles sought to be imported against the REP licence. It is well settled that if the interpretation of a fiscal enactment is open to doubt, the construction most beneficial to the subject should be adopted even if it results in his obtaining an advantage. One can only look fairly at the language used but nevertheless, fiscal law has to be interpreted reasonably and in consonance with justice. If the Revenue Authorities have understood the scope of relevant clause in a particular manner and have applied the same, they should not be permitted to take contrary view. When on an interpretation two views are possible, the view which is favourable to the assessee is always to be preferred as has been done in the instant case by the said Joint Committee in the meeting held on 9th March 1984.

28. Further, xerox copies of certain licences had been produced before us wherefrom it appears that under A.35(d) licence identical items had been released by the Customs Authorities. That apart, the Customs Authorities have not disputed that under REP licence No. 0487378 being a subsidiary licence issued under A.35(d), Customs Authorities had already allowed clearance of the identical goods. The said REP Licence is a subsidiary of the main licence No.P/W/0487209 as appearing from the Bill of Entry. The writ petitioner has produced the very same subsidiary Licence for clearance of identical goods for the unutilised portion of the licence. It is strange that in respect of the same REP licence the authorities are trying to act differently. This cannot be permitted.

29. Having regard to the facts and circumstances of this case we must hold that the articles sought to be imported are covered by A.35(d). We are also of the view that Electronic T.V. Tuners and Remote Control and Deflection Wires which are accessories of T.V. Set are also covered under A.35(d).

30. It has also been contended by Mr. Dipankar Ghosh, learned Advocate for the Customs Authorities that the court in this case should not interfere as it cannot be said that the decision of the authorities not to allow clearance of the goods at this stage is perverse or in excess of jurisdiction. Further, whether the goods fall under a particular entry in the Import Policy or, under some other entries should be decided by the Customs Authorities. Investigation of facts are required to be done and hence there should not be any interference by this Court. It is true that the Customs Authorities are competent to decide the question whether a particular item falls under one head or the other or whether the goods are covered by the licences or not, but in a case where identical goods have been passed under identical licences and in some cases on the same licence there remains no scope of any further adjudication or ambiguity. The Customs Authorities have not stated that clearance made in those cases are contrary to Import Policy or they have allowed clearance by any mistake or inadvertance. The Joint Committee also interpreted the scope of the items involved in these proceedings and released and goods on the basis of the said interpretation. Thus there cannot be double standard of judgment, one for the Calcutta Port and the other for the Bombay Port. If it is allowed then there would be discrimination between an Importer at Bombay and an Importer of Calcutta which cannot be permitted. Since the Import Policy and Customs Act are All India Policy and Statute, it is eminently desirable that there should be an uniformity of construction by the authorities in applying the provisions of the said Act and the Policy.

31. All the contentions raised by the Customs Authorities are thus disposed of. In the result, these applications fail. All interim orders passed by this court in the said applications are vacated. The Customs Authorities are directed to complete the assessments within three days from date and to release the goods forthwith upon payment by the writ petitioner the amount of duty assessed, after adjustment of the provisional duty, if any, paid by the writ petitioner. It is made clear that the release of the goods shall not prevent the Customs Authorities, if they are otherwise entitled, to make investigation and to proceed against the writ petitioner and/or Export Houses according to law. Save as aforesaid the orders passed by A.K. 3anah, 1 in the three writ applications are confirmed.

32. The order virtually disposes of the appeals and the writ petitions. The appeals and the writ petitions are treated on day's list and are disposed of accordingly.

There will be no order as to costs.

33. Mr. Ghosh, learned Advocate appearing on behalf of the appellant prays for a certificate for appeal under Article 134A of the Constitution of India. In our opinion, the case does not involve any substantial question of law of general importance which may be decided by the Supreme Court. Accordingly, the prayer for a certificate is disallowed.

34. The prayer for stay of this judgment is refused.

35. Let a plain copy of the operative portion of this judgment counter- signed by the Assistant Registrar (Court) be given to the learned Advocates for the parties.


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