Open General Licence age : confiscation upheld only for proved older machines, with penalties set aside for lack of culpable knowledge.

Second-hand knitting machines imported under Open General Licence had to satisfy the applicable age restriction of less than seven years. On the evidence, that condition was proved to be breached only for four identified machines, so confiscation was sustainable only in that limited respect. For the remaining machines, non-compliance was not established and confiscation could not stand. Because the goods had already been provisionally released, the redemption fine was reduced. Personal penalties were set aside because the department did not prove the importers' knowledge, understanding, or reasonable belief that the machines were liable to confiscation.

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Issues: (i) Whether the imported second-hand knitting machines were eligible for clearance under the Open General Licence in view of the age restriction in the applicable import policy. (ii) Whether confiscation, redemption fine, and personal penalties were sustainable on the facts proved by the department.

Issue (i): Whether the imported second-hand knitting machines were eligible for clearance under the Open General Licence in view of the age restriction in the applicable import policy.

Analysis: The applicable import policy required second-hand machines imported under Open General Licence to be less than seven years old. On the evidence from the Italian Chamber of Commerce and Industry, the age of manufacture was satisfactorily established for only some of the machines. That material showed that four identified machines were manufactured more than seven years before import, but the same proof was not available for the remaining machines. The later policy could not be used to dilute the conditions governing the imports made during the relevant period.

Conclusion: The Open General Licence condition was violated only in respect of the four identified machines, and not in respect of the remaining machines.

Issue (ii): Whether confiscation, redemption fine, and personal penalties were sustainable on the facts proved by the department.

Analysis: Confiscation was upheld only to the extent the department proved ineligibility of the imported machines under the applicable policy. Since the goods had already been released provisionally, the redemption fine was reduced. Personal penalties were set aside because the department did not discharge the burden of proving knowledge, understanding, or reasonable belief on the part of the importers that the machines were liable to confiscation.

Conclusion: Confiscation was sustained only in part, the redemption fine was reduced, and the personal penalties were set aside.

Final Conclusion: The importers succeeded in part: confiscation survived only for the machines proved to be too old, while the remaining confiscation was set aside and the penalties were annulled.

Ratio Decidendi: Where eligibility for import under Open General Licence depends on a stipulated age condition, confiscation can be sustained only for those goods whose non-compliance is affirmatively proved, and penalty requires proof of the importer's culpable knowledge or reasonable belief.

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