ORDER
T.V. Sairam, Member (T)
1. These are five appeals all taken together as they involve a single common issue: whether the rough marble block imported by the appellant could be imported without any valid license and whether redemption fine and penalty imposed by the lower authorities is justified in all these cases.
2. According to the appellants, the impugned order of Commissioner (Appeals) dated 29.10.04 in which the learned Commissioner (Appeals) had enhanced the redemption fine and penalty on the ground that the appellants failed to produce Special Import Licence against the clearance of goods under ex-bond bill of entry was not legal and proper. It was contended that the Commissioner (Appeals) has not cited any provisions of law i.e. EXIM Policy requiring special import license which has not been complied with by them.
3. The learned Authorised representative of the appellant submits that roughly in respect of 70% of their cases, the imports were backed by valid import licence and only in respect of remaining 30% at the time of importation, they did not have any licence.
4. The learned Departmental Representative states that release advice need to be backed by valid import licence which was not produced before assessing officer and before the Commissioner (Appeals). He further, contends that at the time of initial import admittedly the appellants did not have valid licence with them and subsequently they bought them from the market. In this context, he relies upon para 4.15 of Handbook of Procedures Volume I 1997 2002 which reads as under:
4.15 Validity of import licences/CCPs (a) The validity of import licence shall be as follows:
(i)
Duty
free license as per chapter 7 and replenishment license for Gem &
Jewellery as per Chapter 8 of the Policy
18
months
(ii)
EPCG
licence
12
months
(iii)
Others
including CCP and DEPB, unless otherwise specified
18
months or
(iv)
Advance
licence/Special Imprest Licence for project Turnkey project
Co-terminus
with the contracted duration of execution of the project whichever is later.
(b) Where the date of expiry of the licence falls before the last day of the month, the licence shall be deemed to be valid until the last day of the month.
(c) The period of validity means the period for shipment/despatch of goods covered under the licence. The validity of an import licence is decided with reference to the date of shipment/despatch of the goods from the supplying country as given in paragraph 15.15 of this Handbook and not the date of arrival of the goods at an Indian port.
5. The learned Authorised representative relies upon Export and Import Policy 1997-2002 para 4.15 relating to private bonded warehouses for imports reads as under:
Private bonded warehouses may be set up in the Domestic Tariff Area as per the terms and conditions of notification issued by Department of Revenue. Any person may import goods except prohibited items, arms and ammunition and hazardous waste and chemicals and warehouse them in such private bonded warehouses. Such goods may be cleared for home consumption in accordance with the provisions of this Policy and against Licence, wherever required. Customs duty as applicable shall be paid at the time of clearance of such goods….
5. We have given our anxious considerations for various contention as stated above. Having heard both the sides and buried our heads in the record, we do find that the impugned order of the Commissioner (Appeals) has not discussed the relevant background policy and procedure as prevalent at the time of importation – clearance which has a direct bearing on the whole issue (Sic). He has simply held that the release advice produced by the appellants carry the serial number of the licence and do not indicate the kind of licence against which such advice was issued.
During the hearing, the letter addressed to the appellants by the Commissioner (Appeals)’ office dated 13.10.04 has come to our notice. Under this letter, the Superintendent had directed the appellants to produce the copy of release advice and copy of special import licence. In reply to this, the appellants on 15.10.04 sent a reply containing the details of the goods cleared by them indicating the relevant license/release advice against each consignment. Copies of Bills of entry have also been furnished along with this reply wherein the then Range Superintendent had made an endorsement to the effect that the goods were cleared under release advice. While doing so, the Superintendent had also defaced their copy of release advice keeping original with him. In this letter, we also find an indication to the effect that the copy of licence along with original release advice had been kept in the range office of the respondents. It appears that the learned Commissioner (Appeals) has decided the matter without considering all these submissions and enhanced the quantum of redemption fine as well as penalties without giving them opportunity to defend themselves and without calling for the relevant documents stated to be lying in the range office. It was pleaded before us that as the appellants are prepared to produce the relevant licenses, and as it was assured by the learned Authorised representative for the Appellant that Rs. 50,000/- deposited as pre-deposit for the purpose of hearing these appeals would not be withdrawn by them, we set aside the impugned orders in all these matters and remand them before the adjudicating authority for granting afresh decision of course after taking into consideration all the relevant records including licence they may be produced by the appellants in accordance with law. He should also go by the law as prevalent in the relevant period particularly the relevant policy and procedure as stood notified by the Government with regard to the period covered in these appeals. All these appeals are accordingly, allowed by way of remand.
(Dictated in the open Court on 20th June, 2007)