ORDER
P.K. Desai, Member
1. Invoking the provisions of Section 130 of the Customs Act 1962, the applicants have sought reference to the High Court on the questions as formulated by them, pleading them to be the issues of law arising out of Order No. 759/93 dated 27.5.1993 of this Bench in Appeal No. C/845/85 reported as Sun Exports Corporation v. Collector of Customs, Air Cargo Complex, Bombay in [1993] 44 ECC 44 (WRB).
2. The applicants who are the Exports House, imported spare parts of motor vehicle, namely sector shafts and nyloc nuts and claimed clearance thereof under REP licence, duly transferred to them. The said licence was endorsed vide para 263(3) of the Import and Export Policy Book for AM 1985-88 and it was claimed that pursuant thereto, they were eligible, vide para 263(1)(6) (sic), to import spares which were placed under Open General Licence for actual users (industrial), and as such, they could import spares figuring in Clause 4 of App.6 of the said Policy Book. It was further claimed that the items imported did not fall within any of the Appendices 2, 3-A, 8 and 10, which were excluded, and as such, the import ought to be allowed. The clearance was however, objected to on the ground that the Motor Vehicle parts would not stand covered under Para 263(1)(C) of the Policy Book. On the applicants waiving the issue of show cause notice, the matter was adjudicated upon by affording personal hearing, when, referring to the other provisions in the Policy Book AM 85-88, it was held that only such of the spares which could be required by the actual user (industrial) for operation and maintenance of their capital goods, could be imported under that licence.
3. The said order was brought by way of an appeal, before the Tribunal where, besides pleading on merits, reliance was also placed on the Bombay High Court Judgment in Union of India v. R. Ripul Kumar & Co. . This Bench, vide order as aforementioned, however confirmed the finding of the Adjudicating Authority by holding that for seeking import vide provisions of App.6(4) of the Policy Book A.M. 85-88, it was necessary that the items imported should not be falling within the Appendices mentioned therein and should be such which could be imported as spares by the actual users (industrial), and that the items imported were not such, which could go as spares importable by actual users (industrial), who could import only such spares, which could be those “ready to replace” the existing parts in the machinery installed by them for carrying out their manufacturing activity. It was also observed that admission from the importers themselves, showed that the subject goods were imported because of the indent from Tata Engineering and Locomotives Co. Ltd., recognised manufacturers of motor trucks and in all probabilities the subject goods were to go as components for their manufactured products. The ratio of Bombay High Court judgment in Re: R. Ripul Kumar (supra) was held as not ‘ applicable here. The appeal was accordingly rejected.
4. Though several questions have been formulated, Mr. V.S. Nankani, the Id. Advocate for the applicants, has stated that he was pressing for reference only on those questions listed as (b), (c) and (f) and that the other questions need not be considered.
The questions formulated at (b), (c) and (f) read thus.
(b) Having regard to the provisions of para 263(1)(c) of the Import Policy for AM 1985-88 do the spares imported by an Export House against an additional licence have to satisfy the condition of para 108 of the Import Policy for AM 85-88, i.e., only those which are required by the concerned actual user for the operation and maintenance of actual goods, when the provisions of para 263 of the Import Policy for AM 85-88 permit an Export House to dispose the spares imported thereunder to any person?
(c) Whether this Hon’ble Tribunal is correct in distinguishing and not following the judgment of the Hon’ble Bombay High Court in Union of India v. Ripulkwnar 1988 (37) ELT 517 (Bom)?
(f) Whether in the absence of any evidence, material or allegation of record this Hon’ble Tribunal was correct to holding that this (sic) the applicants imported the spares for motor vehicles on the basis of the indent of M/s. Tata Engineering and Locomotive Co. Ltd., who manufacture motor trucks, the parts imported would fall within the category of “components” and would cease to be branded as “spares”?
5. Mr. V.S. Nankani, the Id. Advocate for the applicants has submitted that the Bench has, while deciding the issues, failed to appreciate distinction between “Import under OGL” and “import of items mentioned in OGL” and has pleaded that though, for import under OGL, all the conditions attached to such import would stand applicable, for the other one, such condition could not be applied, as in that case, only the items imported have been identified. Referring to para 263(1)(c) of the Policy Book AM 85-88, he has pleaded that the Export House holding REP Licence specifically endorsed vide para 263(3) falls within the second category and the Bombay High Court has, in R. Rupul kumar (supra) clearly laid down the law and the with (sic) the approach adopted by the Bench, being not in conformity with the same, the questions identified as aforementioned, would arise.
6. Mr. K.M. Mondal, the Id. S.D.R. has however, submitted that there is no probability for interpretation of the policy provisions in any way other than the one, done by the Bench and further question (f) is purely a factual question.
7. Even assuming for the time being that questions (b) and (c) as reproduced above, may require some more consideration, so far as question (f) as formulated is concerned, there is a clear admission from the applicants themselves, in para 2 of the Statements of facts attached to C.A.3 form, submitted by way of preferring the appeal before the Tribunal, when they have stated that the subject consignments “were imported on the basis of indent/order bearing No. 825-PO-0277/l dated 3.1.1986 of M/s. Tata Engineering and Locomotive Co. Ltd., Bombay.” This indicates that the subject goods were specifically for that party. The items imported are undisputedly spares for motor vehicles and there is no challenge that the TELCO Ltd., are the manufacturers of motor vehicles, when the subject goods could go as original components. The applicants had claimed the import as “spares” but did not produce any evidence whatsoever from their indentors that they were to be used only as “spares”’ and not as original components. The situation in which the applicants were placed, necessitated them to procure such evidence, as they could not have, in view of the specific case pleaded, taken recourse to the provision of para 263(1)(c) of the concerned policy book. The Bench has considered the minor distinction between spares and components, and in the peculiar set of circumstances, with no specific evidence available, considered the probability of one of the subject goods as components. The issue has been considered entirely from the factual position and appreciation of evidence, and would not give any rise to any issue of law, much less of the nature as is formulated by the appellants. Question (f) therefore could not be taken as an issue of law which could be referred to be referred to the High Court vide Section 130 of the Customs Act.
8. As regards the other questions sought to be referred to, the main thrust is on the point, that the applicants were themselves, not the actual users (industrial) importing under OGL but by virtue of possessing REP Licence, bearing endorsement vide para 263(3) of the Policy Book AM 85-88, they could import the goods listed as eligible for import by any actual user (industrial) and that the Bombay High Court has, in Re: R. Ripul Kumar (supra), held that other conditions for actual user (industrial) are not applicable.
9. The Bench has, in the impugned order, observed that the Bombay High Court decision cited was not attracted here. To reiterate and further clarify, the issue here was the one as to which could be those items which an actual user (industrial) could import as spares and not whether the terms and conditions governing them would stand applicable to REP Licence held by Export House, and this Bench has held that the subject items could not be those which were importable by actual user (industrial) as spares. The decision of the Bombay High Court referred to above, however is on applicability of other conditions, and it does not touch the specific issue considered by this Bench.
10. In other words, it could only be such spares which could be imported as such, by any actual user (industrial) and if the items imported as spares could not be available for import as “spares” by the actual user (industrial), they obviously could not be imported vide para 263(1)(1) (sic) of the Policy Book, by an Export House, and that is what this Bench has held in the impugned order.
11. The Export House, by virtue of their holding REP licence, could never be intended to be placed on the higher pedestal so as to permit them to import items which even actual user (industrial) could not import under OGL. The intention in laying down provisions of Para 263 in Policy Book AM 85-88, (on similar provisions in prior and subsequent Policy Books) is basically to facilitate small actual users (industrial) to keep away from the cumbersome procedure of import and also to overcome the hurdle, where the foreign supplier may not be willing to supply in small quantity. The policy provisions are in no way intended to give any premium to any Export Houses.
12. The Delhi High Court have in Jain Exports Pvt. Ltd. v. Union of India, 1987 (27) (sic 29) ELT 753 (Del) at para 40 of the judgment, held that Export House should suffer the same constraint, as the actual user (industrial) and they cannot be treated differently, so as to put them on higher pedestal.
13. Thus when the judgment of the Bombay High Court is on different set of facts and the issue, and when the Delhi High Court has taken the view which is in conformity with the view taken by this Bench and when there does not appear any probability for alternative view, other than made explicit in the impugned order of this Bench, there does not appear any scope to accept questions (b) [and] (c) as issues of law arising from the order of this Bench, which need be referred to the High Court.
14. Under the circumstances, the application for reference is rejected.