TaxTMI 
TaxTMI 
2009 (8) TMI 82
X X X X Extracts X X X X
X X X X Extracts X X X X
....port Export Policy of April 1988 to March, 1991 Thread Grinding Machines were listed at Serial No.128 of Appendix I Part B, which Appendix covered "Capital Goods allowed under Open General Licence". Para 30(1) of Chapter 3 of the Import and Export Policy reads as under: " Import of Secondhand machinery - 30(1)Items of machinery allowed for import under Open General Licence (vide Appendix I Part B) can also be imported in secondhand condition. In such cases, however, the importer will produce to the Customs authorities at the time of clearance, a certificate from professional independent Chartered Engineer/any Institution of Engineers in the country from which import is made in the prescribed proforma given in the Hand Book of Procedures, 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce by actual users vide Appendix I, Part B of the Policy should be made before the end of the licencing year. However, in cases where the importer enters into a firm contract but the goods cannot be shipped on account of longer delivery period involved, the shipment may be allowed upto 31st March of the following licencing year in pursuance of such firm contract provided the contract in question has been duly registered with the Foreign Exchange Dealer (Bank) on or before 31st March, during the licencing year 1988-89 and on or before the 28th of February during the licencing year 1989-90. In specific cases where the delivery period is still longer, the Chief Controller of Imports and Exports, New Delhi may allow shipment under Open General ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a, Bombay 400 003 for the period upto 30th September, 1990 for shipment for import of a second hand "Thread Grinding Machine" under OGL. This issues with the approval of the Chief Controller of Imports and Exports". A copy of the said order is hereto annexed and marked Exhibit "J"." 5. Subsequent to the letter the bank extended the Letter of Credit upto 30th September, 1990. The 1st petitioner requested the UK supplier to supply the said machine. The machine arrived by Air on 30th September, 1990. The petitioners specifically averred that had this permission not been given the 1st petitioners would have cancelled the contract with the U.K. Shippers and would not have imported the said machine. 6. According to the petitioners the 2nd r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and E and more specifically the communication of 26th June, 1990 they placed the order and revived the Letter of Credit based upon it the goods were imported. In these circumstances it is set out that it is not open to the Respondents to have confiscated the said goods and/or imposed fine. We may also point out that the petitioners have also relied upon the order of 30th March, 1988 issued by the Chief Controller of Imports and Exports pursuant to the powers conferred by Section 3 of the Imports & Exports (Control) Act, 1947 issued by the Central Government. 8. A reply was filed on behalf of the Respondents by R.P. Meena, Deputy Commissioner of Customs. In the reply it is set out that as per the documents produced by the petitioners the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....91BOM and CESTAT by its order dated 8th May, 1997 was pleased to dismiss the appeal. As this order was subsequent to the filing of the Petition by Chamber Summons the subsequent events have also been incorporated. The petitioners by the prayer clauses therefore, have prayed for quashing the order in original as also the order of CESTAT dated 8th May, 1996. 11. In our opinion it is not necessary for us to go into the controversy of the effect of para.9 of the OGL No. 2/88 and para.7 of OGL No.2/90. In the instant case admittedly considering para.9 as the petitioners could have imported the goods having satisfied the said requirement and as in the meantime a new policy had come into force the petitioners by their communication dated 18th Ap....