TaxTMI 
TaxTMI 
1997 (9) TMI 199
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.... appellant filed a Bill of Entry for clearance of one high speed wrapping machine having maximum speed of above 120 per minute which they purchased from M/s. A. Tosh and Sons, Calcutta on high seas sale basis. They sought to clear the above mentioned goods claiming the benefit of Customs Notification No. 125/86-Cus. which allows specific goods, inter alia, namely, food packaging machine at the rate of 35% Customs duty. They also submitted an additional licence issued in favour of M/s. A. Tosh & Sons. 3. Acting on intelligence and after carrying out searches of some premises and seizure of certain documents, and recording of statements of some persons, it was alleged that the appellant had mis-declared the goods so as to avail the be....
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.... in the instant case was not in order since the high sea sale buyer, i.e. M/s. Praja Enterprise, was not an actual user in terms of the condition as laid down in the Policy. Moreover, it has been established from the documents without any shade of doubt that the imported machine is actually "Type Aucouturier GT - 09 Bundling & Wrapping Machine arranged to wrap bundles of toothpaste, tube and Ctns." as it was initially shown in the proforma invoice dated 6-2-1986 and original L/C opened in the negotiating Bank. From the seized documents it has also been established that the supplier has declared the goods as "High Speed Automatic Wrappers" only under the illegal instruction given by the importers authorised signatory Mr. Pratap Desai of M/s.....
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....tion in the said Policy. From the wording of Entry No. 17(13) of Appendix 1 Part B of Import Policy, 1985-88, it is very much clear that without the hyphen, the meaning of the entry becomes redundant and useless. Moreover, if the speed 120/minute was not criteria then why the importer tried their best to mainpulate the actual description showing the speed @ 120/minute even by tampering the page of original catalogue-cum-service manual. In view of the findings as discussed in the foregoing paragraphs, I have no hesitation in holding that the imported machine is only "Type Aucouturier GT-09 Bundling and Wrapping Machine arranged to wrap bundles of toothpaste, tube, ctns." and not "High Speed Automatic Wrapper" as declared and claimed by th....
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....der to appreciate the rival contentions, it is appropriate to set out the relevant entry in the three policies on which the above arguments are based, (i) AM 1983-88 Policy :- Sub-serial No. 18 of Part I of Serial 18 of Appendix I Part B - "High Speed Automatic Wrappers - other than for safety razor blades, cigarettes and Twist Wrappers for confectionery - of maximum operating speeds above 120/minute." (ii) AM 1988-91 Policy (as on 30-3-1988) Sub-serial No. (13) of Part I of Serial No. 17 of Appendix I Part B - "High Speed automatic wrappers - other than for safety razor blades, cigarettes and twist wrappers for confectionery of maximum operating speeds above 120/minute." (iii) 1990-93 (AM) Policy Sub-serial....
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....the commodity it wraps; otherwise there may be disputes as to what is the minimum speed of a wrapper to characterise it as a high speed. But such a thought disappears when I look at the entry in 1990-93 Policy. In this entry no floor limit has been prescribed to characterise a wrapper as "high speed" Wrapper. For determining the epithet "high speed" to a wrapper, one will have to fall back on the commercial parlance test as to how the machine is known in the market. 8.3.4 Be that as it may, it is clear that the entry in 1988-91 Policy, as it stands, can be read meaningfully as has been done in Para 8.3.2 above without the second hyphen. I therefore, agree with the ld. advocate that one need not go to supposed intendments and indulge....
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....two sentences of sub-para (9) shall be substituted by the following :- "Additional Licences issued to Export Houses/Trading Houses after 1-4-1988 on exports made during 1986-87 or earlier periods, will be valid for import of items appearing in Para I of List 8 Appendix-6 of this Policy." It is, therefore, submitted that actual user condition was no longer in operation at the time of importation of the goods. Ld. advocate, also pointed out that this amendment in ITC Policy was also brought to the notice of the adjudicating authority but it has been ignored by it. I find these submissions of the ld. advocate to be correct. 8.5 In view of the foregoing discussions, I hold that the imported machine was not liable to confiscation u....