ORDER
R. Jayaraman, Member (T)
1. This is an appeal against the order in original No. S/10-1825/85, dated 24-12-1985 passed by the Collector of Customs, Airport, ordering confiscation of a consignment of Editing Machine with six plates which are normally used for purpose of editing/cinematographic film but allowing redemption of the consignment on payment of fine of Rs. 3 lakhs. The appellants have been registered under the Bombay Shops and Establishments Act as a building contractor and holds a registration certificate. They claimed benefit of import of this item under OGL capital goods figuring in Appx., 1B Sr. No. 8(24) of AM 1985-1988. They also stated that as per Appx. 6(3) OGL of the aforesaid Policy, capital goods covered by Appx. 1B can be imported by Actual Users (Industrial & Non-Industrial. However, their claim was not accepted by the customs authorities alleging that they are in the building activity and the registration under Bombay Shops and Establishments Act is for the purpose of building contractor and the equipment in question is for the purpose of film production in the film studio. During the adjudication proceedings, they have produced a registration certificate from Indian Motion Picture Producers Association showing the appellants as a film producer and a certificate of registration with National Film Development Corporation showing the appellants as engaged in the film production and also the certificate issued under the Bombay Shops and Establishments Act. On the basis of these certificates, the appellants pleaded before the adjudicating authority that they are engaged in the production and exhibition of cinematographic films for more than five years and they are holding world rights for several films. However, the adjudicating authority dismissed these evidences on the ground that they do not have any documentary evidence in regard to production distribution and exhibition rights in respect of any feature film. He has also held that the certificate issued by the National Film Development Corporation Ltd. is a recent one, since it is dated 22-3-1985 and the appellants were not operating any film studio or film laboratory. In this view, he passed the aforesaid order which is challenged before us.
2. Dr. Kantawalla, the ld. Advocate, appearing for the appellants, mainly refers to the definition given in the Bombay Shops and Establishments Act, 1948 to plead that includes any establishment, which carries on business, trade or profession or any work incidental or ancillary to any trade or profession. According to the definition of the “Actual User (Non-Industrial)” given in the Import Policy, it can be any commercial establishment which has been registered or holds a certificate for at least 3 years under the local law applicable to Shops and Establishments generally and which carries on any business trade or profession, whether for the purpose of gain or not, but does not include a shop, factory, residential hotel, restaurant or eating house.
They have produced a registration certificate under the Shops and Establishments Act of Bombay and this specifies the definition of Actual User (Non-Industrial). Moreover, the other two evidences viz. the certificate from the Indian Motion Picture Producers Association and also the registration certificate issued by the National Film Development Corporation, indicating them as engaged in film production, also establish that the equipment is needed for actual use. He also stated that subsequent to the import of this equipment, they actually produced 2 films using this equipment and the equipment has not been acquired for sale and it is still with them.
3. Shri Mondal, the ld. SDR, however, contends that the registration certificate issued by the National Film Development Corporation Ltd. has been signed by Shri T. Krishnan for Dy. General Manager (Project). It is not known whether he is competent to issue this certificate. Merely because the appellants are holding certificate under the Shops and Establishments Act, it cannot be held that they are going to put the imported equipment for actual use, unless they own studio, where the equipments can be installed and utilised for film production or film editing. No such evidences are produced to show that they own a film studio or engaged in the production/distribution of films. The certificate produced from the National Film Development Corporation is just 2 months prior to the date of shipment and hence it cannot be accepted that they are the persons engaged in the film production for 3 years.
4. After hearing both the sides, though we may not be able to agree with Dr. Kantawalla that the registration certificate under the Shops and Establishments Act would enable them automatically to import the film editing machine, we cannot disregard the other two evidences produced by the appellants before the Collector; one is a certificate from the Indian Motion Picture Producers Association which is a recognised association of film producers of India. When this Association has given a certificate that the appellants are one of the members, we are to take note that they are engaged in the film production. The other certificate issued by the National Film Development Corporation also indicates that the appellants are engaged in the film production and has been registered on 22-3-1985 much prior to the date of shipment. There is also another letter from the Ministry of Information and Broadcasting dated 31-7-1985, which indicates that the Ministry have recommended the appellants to M/s. Gujarat Communication and Electronics Ltd. for making available the video facilities on the ground of their experience in film production. Based on these documents, we are to hold that the appellants had established their nexus with film production and this equipment is for their actual use. In the case of film production, it may not always be possible for the producers of films to have their own studio and they may engage the studio for producing the films, where such equipment of their own could be taken for use, instead of hiring them. Hence, when we are satisfied that the appellants are engaged in film production and the equipment is for their actual use (Non-Industrial), we are to allow their appeal. Accordingly, we allow the appeal with consequential relief.
(Pronounced in the open court)