Separate consignments cannot be clubbed without proof, while actual user status must be established by valid registration before import.

Separate import consignments cannot be clubbed to test licence validity absent tangible evidence of a colourable device or a split import across ports; the Ahmedabad shipment had to be examined on its own documents. The actual user condition under the REP licence was not met because the importer lacked a valid registration for the relevant place and line of manufacture, and the limited nature of the work did not satisfy the policy requirement. Confiscation of the goods and the penalty on the principal importer were therefore sustained, while penalties on the alleged co-importers were set aside for want of proof linking them to the import.

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Issues: (i) whether the goods imported through Ahmedabad Airport could be clubbed with the Kandla import for testing the validity of the import licence and alleged evasion of the import policy; (ii) whether the appellants satisfied the actual user condition under the REP licence and were entitled to import the loaded PCBs; and (iii) whether confiscation and penalties were sustainable, including the penalties on the co-appellants.

Issue (i): whether the goods imported through Ahmedabad Airport could be clubbed with the Kandla import for testing the validity of the import licence and alleged evasion of the import policy.

Analysis: Clubbing was not permissible in the absence of tangible evidence showing a colourable device or that the two consignments were really one import split across ports. The Ahmedabad goods were covered by their own bills of entry, invoices and banking documents, and the material relied upon by the department did not establish that the Kandla import and the present import were made on behalf of the same importer. Mere similarity of goods and circumstances could not replace proof.

Conclusion: The consignments could not be clubbed, and the licence had to be tested with reference to the Ahmedabad import alone.

Issue (ii): whether the appellants satisfied the actual user condition under the REP licence and were entitled to import the loaded PCBs.

Analysis: The appellants claimed to be actual user industrial units manufacturing electronic sub-assemblies, but they had no valid registration certificate from the appropriate Government authority for that line of manufacture at Baroda. The certificate relied upon from West Bengal did not cover the operations at Gujarat, and the factual material indicated that only minimal work such as fitting and soldering was involved. In these circumstances, the statutory and policy requirement of actual user was not fulfilled at the time of import.

Conclusion: The appellants did not satisfy the actual user condition, and the import was not authorised under the licence.

Issue (iii): whether confiscation and penalties were sustainable, including the penalties on the co-appellants.

Analysis: Since the import by Dipen Enterprises failed the actual user requirement, confiscation under section 111(d) was justified and the penalty on Dipen Enterprises was upheld. However, as clubbing was rejected and there was no tangible evidence that the Kandla import was on behalf of Jolly Enterprises or that the other individual appellants were importers, the penalties on the co-appellants could not stand.

Conclusion: Confiscation and the penalty on Dipen Enterprises were sustained, but the penalties on Jolly Enterprises, Suresh V. Shah and Nilesh V. Shah were set aside.

Final Conclusion: The common order resulted in dismissal of the appeal of Dipen Enterprises and relief to the co-appellants by setting aside their penalties, leaving the confiscation against the principal importer intact while rejecting the attempt to sustain the case through clubbing of consignments.

Ratio Decidendi: In the absence of tangible evidence of a colourable device, separate consignments cannot be clubbed to test licence validity, and an actual user industrial importer must hold a valid registration from the appropriate authority for the place and nature of manufacture before import is treated as authorised.

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