Per Shri P.C. Jain :

Ld. consultant, Shri B.N. Chattopadhyay points out that the Stay Petition has become infructuous because the applicant in the meantime has got the goods released on payment of duty, redemption fine and penalty. Stay Petition is dismissed as being infructuous.

2. Thereafter, with consent of both sides, I have preceeded to hear the Appeal itself.

3. The appellants imported 60 cartons of Erasers (made of Rubber) of CIF value of Rs. 2,48,092.79. They sought the clearance of the goods against special import license claiming the goods as office stationery item covered by Sl.No. 57 of Appendix XXXV. The said Appendix gives a list of items permissible for import against transferable Special Import License (SIL) issued under paras 122, 132B, 142 and 153 of the Export & Import Policy, 1992-97 and the relevant chapter of the Hand-book of procedure (volume I) Serial No. 57 is as follows:

"57. Office stationeries excluding pins, clips, stapler and writing instruments all types."

4. Ld. consultant has submitted that Erasers are not specifically excluded from the aforesaid S.No. 57. He, therefore, submits that Erasers being a part of office stationery are permissible to be imported against the relevant SIL. He, therefore, submits that lower authorities' findings to the effect that these are meant for school going children and not for office use is not correct. Ld. consultant has also mentioned in passing reference to Export & Import Policy aligned ITC (HS) Classification, relevant extract from which is available at page 17 of the Appeal papers. Column 5 of the said classification, he submits, indicated that the goods are "consumer goods - not permitted to be imported except against a licence or in accordance with a Public Notice issued in this behalf". Next column against relevant item states import permitted against SIL. Based on this Entry in the said aforesaid classification, ld. consultant has submitted that SIL allows import of Erasers which they have duly submitted and has not been denied by the authorities below. He, therefore, prays that the Appeal be allowed after setting aside the impugned order which has confiscated the goods with imposition a fine in lieu of confiscation of Rs. 1 lakh and has also imposed a personal penalty of Rs. 10,000/-.

5. Opposing the contention, ld. JDR, Shri S.N. Ghosh submits that ITC classification aligned with HS is not a policy document. This by itself cannot be relied upon. One has to looked into to the terms of Exim Policy, 1992-97 to determine whether any goods are permissible to be imported without a licence or whether they are permissible against a licence presented by an importer. As regards the question whether the imported Erasers can be called at all "office stationery", ld. JDR submits that a look at the Eraser which have been presented for inspection before the Bench will indicate that holder of the Erasers carries the imprints of various fruits, such as bananas, apples etc. along with inscription of those fruits. Such an imprint along with inscription on the holder of the Erasers shows that these are essentially meant for use by school-going children or even by montessori school children. It is, therefore, submitted that these Erasers cannot be considered as an office stationery at all and consequently, S.No. 57 of Appendix 35 will not be of any help to the appellants herein. Apart from the foregoing, ld. JDR has submitted that the licence has been rejected by the authorities below on the ground of treating the imported goods as not covered by the expression `office stationery'. They have not looked into the other aspects whether the import licence is valid or not from other angle which is also required to be looked into before the clearance of the goods can be allowed by the authorities below. He, therefore, prays for dismissing the Appeal or remand the matter if his plea on the goods not being office stationery is not accepted.

6. I have carefully considered the pleas a