ORDER
Jyoti Balasundaram, Member (J)
1. The facts in brief, leading to the present appeal, are as follows :-
2. The appellants imported a consignment of “Needle Sewing Machine with standard accessories” valued at Rs. 1,09,174/-. They sought clearance of the same under Appendix 6 of the Import Export Policy, 1985-88 read with SI. No. 5 of Appendix 1, Part B (Entry No. 99) thereof. Their claim for importation under Open General Licence (OGL) was rejected by the Addl. Collector of Customs, New Delhi on the ground that they have not satisfied the ‘Actual User Condition’. He, therefore, confiscated the said items and allowed them redemption on payment of a fine of Rs. 50,000/-. No personal penalty was imposed on the appellants. It is against this order of the Additional Collector dated 2-2-1987, the appellants have come in appeal before this Tribunal.
3. Shri V. Sridharan, learned Counsel has appeared on behalf of the appellants. He submits that Appendix 6 of the Import Export Policy, 1985-88 specifies the categories of importers and the items allowed to be imported by them under OGL. As per Appendix 6 ‘Capital Goods covered by Appendix 1, Part B’ can be imported by ‘Actual Users (Industrial and Non-Industrial)’. He submits that the items under dispute are covered by Appendix 1, Part B (Vide Entry No. 99 – SI. No. 5) and the appellants are an Industrial Undertaking which has been granted Industrial Licence by the Ministry of Industry for the manufacture of Automobile tyres and tubes and the items imported are for ‘actual use’ by them. He, therefore, pleads that the appellants have satisfied all the conditions for import of the goods under OGL. The learned Counsel submits that the stand taken by the Additional Collector that SI. No. 5 of Appendix 1, Part B relates of ‘machinery for manufacture of Garments/Hosiery/made-up’ and, therefore, only manufacturers of Garments/Hosiery/made-up alone can be termed as ‘Actual Users’ is wrong. He submits that such an interpretation would render SI. No. 3 of Appendix 6 redundant.
4. Heard Smt. Dolly Saxena, SDR for the Respondents.
5. I have carefully considered the submissions made by both sides and have gone through the facts and circumstances of the case.
6. The question that would arise for consideration is as to who would be ‘actual user’ within the meaning and scope of Import Export Policy, 1985-88 as far as the items at Entry No. 99 of SI. No. 5 of Appendix 1, Part B are concerned whether any industrial user who puts them to actual use or only the manufacturers of Garments/Hosiery/madeup.
7. The relevant entry is extracted below :-
"APPENDIX -I
Part-B
LIST OF CAPITAL GOODS ALLOWED UNDER OPEN GENERAL LICENCE
ITC Rev. 2 CCN Code
Code
XX XX XX XX XX XX
5. Machinery for manufacture of Garment
/Hosiery/Made-ups, the following :-
(1) to (98) xx xx xx xx
(99) High speed multiple Needle
sewing machine 724.3103 84.41
xx xx xx xx xx xx"
8. Here it would be interesting to see some of the items mentioned under Item Nos. 5 and 6 of Appendix I Part B, They are given below :-
"5. Machinery for manufacture of Garment/Hosiery
/Made-ups, the following :-
(14) Two needle (chainstich Brackets supplied or)
lockstich machines 724.3103 84.41
(86) Sewing machine Zig Zag Flat bed 724.3103 84.41A"
"6. Machinery for leather Processing/finishing
/manufacture
(ii) (10) Sowing machine Zig Zag Flat bed 724.3103 84.41
(ii) (48) Two needle lockstich machine 724.3103 84.41"
9. A perusal of the items listed above under SI. Nos. 5 and 6 shows that the same items appear under both the items. The contention of the learned Counsel in effect, would mean that Entry No. 99 is independent of SI. No. 5 and any industrial licensee, who puts the items mentioned against Entry No. 99 to actual use, would be eligible for import under OGL. If the contention of the learned Counsel is accepted, there is no necessity for such items being listed under both the items. Further a perusal of Appendix 1, Part B would indicate that there are certain items listed under that which would find use in more than one industry [e.g. Packing machine (SI. No. 5 (63); knife Sharpening Machines (SI. No. 5 (68); Conveyors (SI. No. 5 (73); Screwing machine (SI. No. 6 (ii) (96); etc.]. What follows is each item appearing under the respective SI. Nos. is wholly dependent on the SI. Nos. In any case an entry cannot be read independently disregarding the SI. No. under which it falls. In the present case the SI. No. 5 reads “Machinery for manufacture of Garment/Hosiery/Made-ups, the following:-” Therefore, the items mentioned against each entry under that SI. No. is for manufacture of garment/hosiery/madeups. Admittedly the appellants do not hold a licence for manufacture of garment/hosiery/made-ups.
10. According to the definition of “Actual User (Industrial)” it means “an industrial undertaking, be it in the large scale, small scale or cottage industries sector, engaged in the manufacture of any goods for which it holds a licence or Registration Certificate from the appropriate Government authority, wherever applicable”. This definition cannot be read in isolation for, the provisions of a statute have to be read in a harmonious manner. If the definition is so read with Appendix 1, Part B and in the light of the discussions above, it makes it clear that only manufacturers of garment/hosiery/made-ups can be said to be actual users of those items, within the meaning and scope of the Import & Export Policy, 1985-88 and can import the items under OGL.
11. I do not find any merit in the contention of the learned Counsel that such an interpretation would make the provisions of SI. No. 3 of Appendix 6 redundant. Appendix 6 specifies the categories of importers, the items allowed to be imported by them under OGL and the conditions governing their importation. Appendix 1, Part B lists the Capital Goods allowed under OGL. In the light of the discussion above, if can be seen that they are independent but at the same time inter-related. Therefore, they have to be read harmoniously.
12. In this view of the matter, I hold that the appellants cannot be said to be ‘Actual Users (Industrial)’ as far as the items under dispute are concerned.
13. Alternatively, the appellants have sought clearance of the goods under question under an additional licence dated 17-7-1985. This claim of the appellants was also rejected by the Additional Collector. A copy of the said licence is placed on record. On perusal of the licence I find that the same has been issued as per Sub-paras 4, 5, 6 and 7 of para 265 of the Import & Export Policy, 1985-88. Para 265(b) read with para 263(4) makes it clear that ultimately the goods should be used by ‘Actual User (Industrial)’. I have already held that the appellants cannot be termed to be ‘Actual Users (Industrial)’. Therefore, this alternative plea of the appellants is also rejected.
14. In the result, I do not find any reason to interfere with the order of the Additional Collector. The appeal is dismissed.