2004 (5) TMI 427 - AT - Customs

Summary

Issues:
1. Clearance of staple pins under REP license.
2. Interpretation of the clarification regarding import of staple pins.
3. Delay in adjudication and imposition of penalty.
4. Existence of a practice for clearance of staple pins.
5. Validity of penalty based on the clarification issued.

Issue 1: Clearance of staple pins under REP license
The case involved the clearance of staple pins under a REP license for product group 'O' of Appendix 17 against Entry at S. No. (IX) Para 188 of EXIM Policy 1985-88. The appellants sought clearance for staple pins imported as stationery items but were denied clearance based on a clarification that only staple pins used as embellishments in the manufacture of export products were allowed for import under the mentioned license.

Issue 2: Interpretation of the clarification regarding import of staple pins
The Commissioner (Appeals) found that the appellants were using the staple pins as stationery items and not as items of embellishment, as required by the clarification. It was noted that the appellants were aware of the clarification issued by the D.G.F.T. and could not claim ignorance. The delay in adjudication was attributed to the appellants' choice to file a Writ Petition, leading to the final imposition of a penalty under Section 112(a) of the Customs Act, 1962.

Issue 3: Delay in adjudication and imposition of penalty
The delay in adjudication following a Writ Petition filed by the appellants was acknowledged, but it was highlighted that the appellants also shared the blame for the delay. Despite the goods being allowed clearance under an interim order, a penalty was imposed under Section 112(a) of the Customs Act, 1962, as the goods were found liable for confiscation under Section 111(d).

Issue 4: Existence of a practice for clearance of staple pins
The Tribunal considered the existence of a practice for clearing similar goods under REP licenses based on past precedents and decisions. The Tribunal referred to previous cases where staple pins were allowed for import under similar circumstances, emphasizing the importance of past practices and bona fide actions by importers.

Issue 5: Validity of penalty based on the clarification issued
The Tribunal analyzed the validity of the penalty imposed based on the clarification issued by the Deputy Chief Controller of Imports and Exports. It was argued that the penalty could not be upheld as the Customs Department also had doubts about the interpretation of the policy, and no Public Notice of change in practice had been issued. The penalty was set aside based on the lack of findings regarding lack of bona fides and in accordance with the Custom Appraising Manual guidelines.

In conclusion, the Tribunal set aside the penalty and allowed the appeal based on the findings related to the issues discussed above, emphasizing the importance of past practices, interpretations of clarifications, and adherence to procedural guidelines in customs matters.