TaxTMI 
TaxTMI 
1999 (2) TMI 336
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....appellant and imposition of redemption fine of Rs. 30,000/- and penalty of another Rs. 30,000/- is justified in the facts and circumstances of the case. 3. Heard Shri R. Raghavan, learned Advocate for the appellants, who submits that the issue involves the import of second-hand machinery described as second-hand confectionery machine imported vide Bill of Entry No. 72, dated 4-2-1998.The importers are having a factory at Hyderabad which manufactures biscuits and falling under the SSI category. The department contends that since the importer does not hold a SSI license which clearly satisfies that he is licensed for the manufacture of confectionery, therefore, this import by him does not satisfy the condition of actual user OGL under....
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....s case because the importer does not hold an SSI registration certificate for confectionery. (b) In this connection, learned Advocate relies on the definition of actual user in the said policy which is contained in Chapter 3. Para 3.5 governs the definition of Actual User (Industrial) and reads as follows : 3.5 "Actual User (Industrial)" means a person who utilises the imported goods for manufacturing in his own industrial unit or manufacturing for his own use in another unit including a jobbing unit. Learned Advocate submits that a plain reading as long as the importer utilises the imported goods for manufacture in his own factory or for manufacturing it in another unit though on his own account, the importer satisfies the co....
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....icence as a pre-condition to qualify as an actual user industrial in the present policy under which this import is governed. Therefore, learned Advocate submits that even if the importer does not hold an SSI licence for confectionery but only for biscuits, that issue is irrelevant as per the present policy in vogue for the importer to qualify as an actual user. The department has obviously, may be through force of habit, applied the definition of an older policy which has no legal sanctity to an import under this policy. Since all other conditions under this policy are satisfied, therefore, the department has clearly erred in ruling that the import was unauthorized and, therefore, by enforcing fine and penalty. (d) Learned Advocate ....
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.... Policy i.e. 1997-2002. I find that the import of second-hand machinery is covered by Para 5.4 which has already been noted above. A plain reading thereof shows that this para concerns the import of all kinds of second-hand capital goods. Therefore, I find that as long as the items imported is a second-hand capital goods, the provisions of this para would apply. These provisions can be broken down as prescribing the following tests :- (a) The machines should have a minimum residual life of 5 years, which fact is not disputed. (b) It is allowed to be imported without a specific licence subject to actual user condition and in accordance with the procedure given in Handbook (Vol. I), which ....
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....finition of actual user Industrial under this policy. We cannot read more than what is contained in this definition. On this count we cannot read into it that there is a necessity of an SSI Registration Certificate for the goods "confectionery." The only thing that the existing registration certificate available with the importer proves that he has an industrial unit in operation at Hyderabad and, therefore, it is quite likely in terms of his declaration that he shall use the imported goods in that unit. If he did not have any industrial unit on record, then it would have been a different matter, because then the importer would have to satisfy as to in which industrial unit he would use the goods on his account. Here even this is not involv....