CIMMCO BIRLA LTD Vs. COMMISSIONER OF CUSTOMS BOMBAY

JUDGEMENT

(1.) BEING aggrieved by the order dated 28-6-1995 of the Respondent No. 2 directing the petitioners to pay duty on import of Rollers (being components of Cement Manufacturing Plant), the Petitioners have filed this Petition under Article 226 of the Constitution.

(2.) THE facts giving rise to this Petition, briefly, are as follows :-

(3.) UNDER the Import Policy (1990-1993), Petitioners were granted Special Imprest Licence on 11-1-1991 for import of raw materials and components (Roller Press) for manufacture of Cement plant Machinery under Duty Exemption Scheme. The import against the Special Imprest Licence was exempt from payment of duty. Accordingly, in March 1992, Petitioners imported 5 Rollers [presses]. The goods were cleared for home consumption. The goods on importation in 1992 were given benefit of duty exemption. It is the case of the Petitioners that the four Rollers failed during the period December, 1994 upto February, 1995 and since the Rollers were required to be replaced the damaged/failed Rollers came to be re-exported to Germany in May, 1995 (i. e. after three years ). The replaced Rollers thereafter once again came to be imported in 1995. The petitioners claim that the said Rollers are not fresh imports but they are the replacement of the failed/damaged Rollers which were earlier imported without payment of duty in 1992. In the petition, the short point therefore which arises for determination is, whether the alleged replaced rollers imported in 1995 could be said to be replacement of the old Rollers or whether they were fresh imports under the present Import Policy. By affidavit in reply filed by the Respondent No. 2, it is pointed out that even prior to re-export of the damaged Rollers the Director General of foreign Trade vide letter dated 15-2-1995 had informed the Petitioners that the import of the subject goods was not covered under the Duty Exemption Scheme of the current Import Export policy in force. At this stage, it may be mentioned that the earlier Policy was for the period 1990-1993. The Special Imprest Licence given to the Petitioners expired in June, 1992. The imports of the goods were given benefit of exemption in 1992 and after three years, Petitioners claim that the Rollers failed and, therefore, they were required to be re-exported in 1995. It is also claimed by the Petitioners that the subject import goods constitutes replacement and not fresh imports.