1995 (12) TMI 149

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.... : "The sample is in the form of assorted nature of Cuttings of different Colours, Shapes, Sizes and Thickness. It is composed of Cellulose Acetate & Cellulose Acetate Butyrate types of Plastic." There is further note of the Chemical Examiner which reads as follows : "Note: The sample appears to be Scrap type of material. However, Bulk consignment of the sample may also be verified." 3. Lower authorities have held the goods requiring a licence and that it could not be imported under OGL in view of Para 27 of the Handbook of Procedures. For appreciating the findings of the lower appellate authority and the arguments advanced by the learned Consultant for the appellants, I reproduce the Para 27 of the said Handbook as reprodu....

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.... that prohibition or restriction, if any imposed, flow from the I.T.C. Policy. Reliance for any prohibition or restriction cannot be taken from the Handbook of Procedures. This is another fundamental mistake, submits the learned Consultant for the appellant firm, committed by the lower authorities. In terms of the Policy except the second-hand goods in Chapter V, there is no specific restriction for importation of Scrap. There is no finding by any of the authorities below nor is there any report of the Chemical Examiner to the effect that the Plastic Scrap imported herein is of a second-hand variety. He, therefore, also submits that the goods not being second-hand cannot be restricted for importation against the Open General Licence. An alt....

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....herefore, submits that the goods in question have been rightly confiscated and a fine and penalty have been rightly imposed. 7. As regards the level of fine and penalty, he submits that in the nature of things, it is bound to vary from officer to officer who adjudicates a case. 8. I have carefully considered the submissions advanced from both sides. I find sufficient force in the two pleas of the learned Consultant. Firstly, Waste cannot be equated with Scrap even in terms of Para 27 of the Handbook of Procedures inasmuch as the two expressions - Waste and Scrap - have been used in that Para, therefore, they cannot, on the normal principle of construction of Law, be treated as same. 8A. In my view, the above opinion ....