ORDER
K.S. Dilipsinhji, Member (T)
1. This is a matter transferred to the Tribunal under Section 131-B(2) of the Customs Act. This has been, therefore, treated as an appeal to the Tribunal. The appellant have argued both in writing as well as orally that the Deputy Collector’s Order No. S/10-106/81F dated 19-8-81 as confirmed by the order of the Appellate Collector of Customs No. S/49-198/81L dated 21-11-81 be set aside on the following grounds :
(a) Their licence No. P/E/K 0382014 dt. 15-12-80 was for packing material and the import of staple pins under bill of entry No. 429/9 per SS FINORTAT for 12 cases of staple pins valued at Rs. 29182/-was correctly covered by the licence as what was imported by them was the industrial staple pins while what was banned under Appendix 3 Sr. No. 622 and Appendix 4 Sr. No. 62 was the staple pin for stationery.
(b) They have submitted samples of the two types of the pins and the catalogue of the goods imported by them to show that the goods are industrial staple pins and not stationery staple pins.
(c) They have argued that under clarification No. 49/6/80-8 l/IPC/4264 dated 9-12-80, the Import Trade Control authorities have clarified that the ban under the import policy applies to staple pins for stationery, and therefore, the ban does not apply to staple pins for industrial purpose.
(d) There is an established practice in the Customs House to permit clearance of staple pins treating them as not banned and in support of this argument, the appellants have submitted bill of entry Cash. No. 1031 dt. 3-1-81 of M/s. B.J. International, 268 Abdul Rehman Street, Bombay-3, and therefore the benefit of the established practice should also be given to them.
(e) In any case, the fine levied by the Deputy Collector of Rs. 30,000/-was in excess of the statutory limit fixed under proviso to Section 125(1) of the Customs Act, and the same is accordingly ultra vires.
(f) In case the licence No. P/E/K 0382014 dt. 15-12-80 submitted by the appellants to the Customs at the time of import of goods is not considered to be valid to cover the import, the appellants submit another licence No. P/L 0375251 dt. 21-7-80 against which the clearance of the consignment may be permitted by making the debit and the fine levied by the Deputy Collector be ordered to refund.
2. We have examined the submissions of the appellants, and the departments contentions. The import policy book does not make any distinction between staple pins for stationery and staple pins for industrial purpose. Under Appendix 3 Sr. No. 622, the import of staple is banned without any distinction of type or category. This ban is further repeated under Sr. No. 62 under Appendix 4 of the relevant policy book. Under para 5 of Appendix 17 of the policy book, it has been absolutely clear that import of an item appearing in Appendix 4 (absolute banned list) will not be permitted against R.E.P. licences entitled to import ‘banned items’ except under certain conditions mentioned in the table appearing in Chapter 17. The staples are not mentioned in this table. It therefore implies that the import of staple pins is absolutely banned and is not permitted. This position is not affected by the entries at G. 2 in Appendix 17 which inter alia permits import of packing material. In view of the aforesaid legal position there is no justification in the distinction sought to be drawn between staple pins for stationery and staple pins for industrial purpose. The catalogue produced by the appellants shows that the staple pins are for use with a simple carton stitcher which can be screwed on to work bench. The catalogue therefore, does imply that the goods are meant for stapling cardboard sheets for converting them into cartons. But this position is not altered under the relevant policy book. Besides, the staples can be used for other purposes like stapling wads of currency notes, joining plastic of metal sheets etc. However, in view of the policy in question, it is not necessary for us to go into the aspects of different categories of staple pins. The appellants reliance on Circular No. 49/6/80-8l/IPC/14264 dated 9-12-80 does not also help their case. This circular only clarifies that the import of staples for stationery was covered by entry No. 622 of Appendix 3 of the Policy Book 1980-81. The clarification is specific to the query made. It cannot be interpreted to imply that the import of other types of staples is permitted. Had it been so, the other category of staples would have been covered by different entries and the appellants have failed to point out such an entry. Similarly, the importer’s claim for an established practice of permitting import of heavy duty staples pins by the Customs House is confined to pointing out only a single case of importation of staple pins by M/s. B.J. International, Bombay under bill of entry cash No. 1031 dt. 3-1-81. The department has contended that one clearance might have been error of judgment on the part of the Customs House and that it cannot serve as an precedent to the appellants. On the other hand, the department has submitted a copy of the order No. 4/10-34/817 dated 4-5-81 of the Collector of Customs under which penal action has been taken in the case of import of staple pins by M/s. Jalaram Trading Co. Bombay. The appellants have argued that the analogy of the Collector’s order dated 4-5-81 is not applicable to the present instance as it covers staple pins MAX No. 10 which are admittedly for stationery use. Even if we were to ignore the Collector’s order dated 4-5-81, we find that except for a single instance cited by the appellants, no established practice appears noticeable in the matter. In this view it would not be justifiable in this to accord the benefit of the single instance to the goods under question when the import policy is very clear. As regards the appellants argument that the fine imposed by the Deputy Collector of Customs is beyond the legal limit under Section 125(1) of the Customs Act, it is seen that the interpretation sought to be put on the proviso of Section 125(1) C.A. is not correct. The fine has to be adjudged at the time of importation of” the goods and before the clearance of the goods for home consumption and their entry in the market. Therefore, the market price mentioned in the proviso cannot refer to the maket price of the goods under import, but market price of the goods of like kind and quality. The appellants have not stated as to what the market price of goods of like kind and quality was at the time import, and in absence of such an argument their plea that the redemption fine is ultra vires Sec’. 125 (1) C.A. is not valid and has to be rejected. In the above light, the fact that the goods under import were sold at a loss is of no consequence. Finally, the appellants’ request for acceptance of the Licence No. P/L 0375251/C/XX/76/B/79 dt. 21-7-80 to cover the goods under import is found to be invalid. The list attached to this licence includes ‘Pearl headed pins and pins of all types’. But this description falls under the Head ‘A’ for ‘Trimming and embellishments, the following’: Therefore, what are permitted for import under the list attached with the licence are pins in the nature of trimmings and embellishments and not staple pins which are banned. Since staple pins are absolutely banned under Appendix 4, there is no question of the;.description of staple pins being included in the list attached to the licence. It is also significant to note that the appellants have claimed the import of staple pins for the purpose of packing. Had their interpretation been correct, the description of ‘Pearl headed pins and pins of all types’ would have figured under heading ‘C for ‘packing materials’ which is included in the licence. As we have observed earlier, the import of staple pins is absolutely banned and therefore there is no question of the same being included in the list Annexed to the Licence No. P/L O375251/C/XX/76/B/79 dt. 21-7-80. We find that the appellants request for acceptance of this licence is also not tenable. In view of the foregoing findings, we hold that the order of the Deputy Collector of Customs as confirmed by the order of the Appellate Collector of Customs, is correct. The appeal is accordingly rejected.