1989 (8) TMI 235 - AT - Customs

Tribunal denies duty-free clearance for goods not meeting portable criteria under Open General Licence

The Tribunal held that the appellants were not eligible to clear the goods under Open General Licence (OGL) due to the apparatus not meeting the criteria ... Compressed air breathing apparatus - Ineligible for importation under OGL unless portable Issues Involved:1. Eligibility for clearance under Open General Licence (OGL)2. Compliance with Para 116(6) of AM '19853. Entitlement for duty-free clearance under Notification No. 208/81-Cus.Issue-wise Detailed Analysis:1. Eligibility for clearance under Open General Licence (OGL):The appellants contended that the imported goods were eligible for clearance under Open General Licence (OGL) as per Appendix 6, List 2, Serial No. 11 of the Import & Export Policy for April 1984 - March 1985. The relevant entry listed 'Portable Intermittent positive pressure breathing apparatus with accessories/compressed air breathing apparatus sets and other breathing protection equipment used by the fire services, filter self-rescuer for mines.'The appellants argued that the term 'Portable' applied only to 'intermittent positive pressure breathing apparatus with accessories' and not to 'compressed air breathing apparatus sets.' However, the Tribunal held that the term 'Portable' applied to both types of apparatus due to the presence of a stroke ('/') between them. The authorities below found that the imported apparatus were not portable as they consisted of large, heavy cylinders similar to those used in hospitals. The Tribunal agreed with this finding, noting that the apparatus weighed over 61 kgs per set and could not be easily carried. Thus, the appellants' contention that the apparatus could be moved on a small trolley was rejected. Consequently, the Tribunal held that the appellants were not eligible to clear the goods under OGL.2. Compliance with Para 116(6) of AM '1985:The Deputy Collector of Customs and the Collector (Appeals) held that the imported goods could not be released as the appellants failed to produce the requisite permission from the Chief Controller of Explosives as required under the Gas Cylinder Rules, 1981, in terms of para 116(6) (iii) of AM '1985.The appellants contended that they had obtained the necessary certificate dated 18-5-85 from the Chief Controller of Explosives, which was later amended to cover 22 cylinders instead of 20. The Tribunal found that the permission to import 22 cylinders was indeed granted and that the findings of the Collector (Appeals) regarding the mismatch in quantity and description were incorrect. The Tribunal concluded that the appellants had complied with the requirements of Para 116(6) of AM '1985.3. Entitlement for duty-free clearance under Notification No. 208/81-Cus:Both the Deputy Collector of Customs and the Collector (Appeals) denied the benefit of duty-free clearance under Notification No. 208/81-Cus. The Deputy Collector observed that the main items imported were pressure valves and cylinders, which could have general-purpose applications and were not specifically designed for medical use. The Collector (Appeals) noted that the goods were intended for industrial use and not for medical purposes, as implied under the notification.The appellants argued that the notification did not restrict the use of goods to hospitals and that the imported goods were covered by the description 'compressed air breathing apparatus sets' in the notification. However, the Tribunal referred to a previous judgment in the case of M/s. Kooverji Devshi & Co. (P) Ltd. v. Collector of Customs, Bombay, where it was held that the notification concerned medical equipment used for treatment and healing, not for industrial use. The Tribunal followed this precedent and disallowed the appellants' claim for duty-free clearance under Notification No. 208/81-Cus.Conclusion:The Tribunal modified the decision to allow the appellants an option to redeem the goods on payment of a suitable redemption fine in lieu of confiscation, considering that the permission to import the goods was granted by the Chief Controller of Explosives. However, the appeal was otherwise rejected.