ORDER
R. Jayaraman, Member (T)
1. This is an appeal directed against the Order-in-Original No. S/10-34/92, dated 19-2-1992 passed by the Additional Collector of Customs, Air Cargo Complex, Bombay, ordering confiscation of a consignment of Bank Note Counting Machine valued at Rs. 47,549/- but t allowing redemption of the same on payment of Rs. 45,000/- and also imposing a personal penalty of Rs. 5000/-.
2. Shri H.R. Shetty, the Ld. Advocate pleaded that the clearance was claimed against 2 exim licence issued during the Policy period AM 1990-93. They claimed the clearance in terms of para 124(7) of the aforesaid policy, wherein flexibility provisions are available for import of non-OGL capital goods. They claimed that the machine imported is non-OGL goods and can be imported. Shri Harnek Singh, the Ld. JDR, however, contends that the classification of the item for the purpose of Customs Tariff has been made as office machine under Heading 8472.90 and this classification has not been challenged. Moreover under para 195(2) of the Policy flexibility provisions are not available to acquired REP licences; since the exim scrips are not in the name of the appellants, but are in the name of some other party and these have been acquired by way of transfer, flexibility provisions cannot be availed. He therefore contended that the order is sustainable.
3. Shri Shetty, the Ld. Advocate, in reply, stated that this could be construed to be an electronic equipment, which is figuring as Appendix 3A item against Serial 732. However, he could not produce any authority to the effect that under exrm scrip, items listed in Appx. 3A could be imported. In the alternative he pleaded that subsequent to this case they have been allowed clearance of Glory Bill Counter in February and March and showed the endorsement of debit in the exim scrip. He also contended that against additional licences issued in another case, Currency Counting Machine is specifically listed as non-OGL Capital Goods and hence it could be construed to be non-OGL Capital Goods. They were under the bona fide belief that the goods are permissible for import and hence redemption fine to the extent of nearly 100% and imposition of penalty are not called for.
4. After hearing both the sides, I find that even going by the claim that it is a non-OGL Capital Goods, which could be imported under flexibility provision, there is no answer with regard to the provisions contained in para 195(2) of the Policy, whereunder flexibility provisions are not available against transferred REP licences. Since these licences are transferred ones, the flexibility provisions are not available. As regards the additional licence, referred to by the Ld. Advocate, it is a licence specifically endorsed for the import of Currency Counting Machine. Hence no conclusion can be drawn as to whether it is a non-OGL Capital Goods or otherwise. The admitted position is that this item has been assessed as an office machine and there is no dispute on this. In view of this the objections taken by the authorities are sustainable. However, I see considerable force in the contention of the Ld. Advocate that imposition of penalty and high redemption fine are not called for, because they appear to be under the belief that the items can be imported against exim scrips as a non-OGL Capital Goods. I would therefore deem it proper to set aside the penalty. I also reduce the redemption fine to Rs. 20,000/- (Rupees Twenty thousand only). Consequential relief to follow.