GAURI ENTERPRISES Vs. COMMISSIONER OF CUSTOMS, PUNE

JUDGEMENT

(1.) (a) The appellants, having their office at 104, lst Floor, Geneva House, Cunningham Road, Bangalore - 560001, are registered with the Directorate of Industries and Commerce, Government of Karnataka and a Certificate was issued to this effect by the authorities on 18 -5 -2001 to engage in the repair and assembly of Diesel Generators. They imported 133 Diesel Engines, CFS -Pune, for assembling them into D.G. Sets, after procuring alternators from the local market and filed two Bills of Entry, viz., B.E. No. 75, dated 19 -5 -2001 for 75 pcs of old and used Diesel Engines and B.E. No. 82, dated 24 -5 -2001 for 58 pcs of old and used Diesel Engines. The appellants claim of import under OGL as second hand capital goods was not entertained. A show cause notice asking the appellants to show cause as to why the goods should not be confiscated under Sections 111(d) and 111(o) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 on the ground that the import of old and used diesel engines fall under the restricted category of imports in terms of Para 5.3 of the EXIM Policy 2001 -2002 AM, and requires specific licence for such imports. After hearing them on 6 -8 -2001, the ld. Commissioner, vide impugned Order -in -Original ordered absolute confiscation of the impugned goods covered by the two Bills of Entry, and imposed a penalty of Rs. 3.00 lakhs in respect of B.E. No. 82, dtd. 24 -5 -2001 and Rs. 4.00 lakhs in respect of B.E. No. 75, dtd. 19 -5 -2001.

(2.) (a). (i) The Commissioner in the impugned order relies upon the case of Shehla Enterprises [1995 (80) E.L.T. 360 (T)] where Tribunal has upheld absolute confiscation of Diesel engines.

(3.) WE have heard both sides and considered the matter and find : -