PINK CITY GEM TECHNOLOGIES Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The appellant is a manufacturer of Jem Jelly. It also exports. It obtains an EPCG License dated 20 -10 -2002 for the import of one Research Sputler Vaccum Tool with Spear Parts. In terms of that license and "Export Promotion Capital Goods Scheme (Chapter 5 of the EXIM Policy) the appellant was entitled to clearance of the machine at a reduced rate of customs duty of 5%. However, the Machine was confiscated and the EPCG lower rate denied to the appellant on the ground that the machine was more than 10 years old and import of such machinery was not allowed under the Hand -Book of Procedure.

(2.) The contention of the appellant is that the restriction of age of machinery applied to import under Open General License and not to EPCG imports. During the hearing of the case, learned Counsel for the appellant has also pointed out that in the EPCG Chapter of the EXIM Policy there was no restriction about the age of the machine till 1st March 2003, when condition relating to age of second -hand machinery was made in the following terms : - "3. Second -hand capital goods upto 10 years old may also be imported under the EPCG Scheme."

(3.) It is the contention of the appellant that, in the absence of any such restriction during the period of import, the authorities could not have imposed the requirement of machinery being less than 10 years old. This contention of the import, appellant was over -ruled by the Commissioner with the following observation : "The appellant have further contended that EPCG scheme, shall override the general provisions contained in Chapter 2 and also relied upon the case laws in this regard, I find that under condition No. 10 of the licence it has been specifically mentioned that "licence will be operative as per provisions of the Exim policy and Hand Book of procedures 2002 -2007 or any other Law/provisions time being in force", From the above wordings it is clear that all the provisions/restriction/conditions will be applicable to the above licence and the above condition is not limited to Chapter 5 as claimed by the appellant,"