2006 (3) TMI 403 - AT - Customs

Summary

Issues Involved:
1. Absolute confiscation of Red Sanders Wood.
2. Imposition of penalties on the exporter and its Managing Partner.
3. Validity of the export license and compliance with EXIM Policy 2002-2007.
4. Discrepancies in the description of goods and their classification as prohibited items.
5. Examination and certification by Forest Officers versus Customs Officers' findings.
6. Redemption of confiscated goods and setting aside penalties.

Detailed Analysis:

1. Absolute Confiscation of Red Sanders Wood:
The appeals arose from an order passed by the Commissioner of Customs and Central Excise, Hyderabad, which ordered the absolute confiscation of 2874 logs of Red Sanders Wood valued at Rs. 57,68,118/- under Section 113(d) of the Customs Act, 1962, read with EXIM Policy 2002-2007, treating them as prohibited goods as defined under Section 2(33) of the Customs Act, 1962. The Customs Officers, upon verification, found discrepancies in the description of the goods in the shipping bill and the transit permit, leading to the conclusion that the goods were roughly squared and trimmed logs of Red Sanders Wood, and not parts of musical instruments as declared.

2. Imposition of Penalties on the Exporter and Its Managing Partner:
A penalty of Rs. 5,00,000/- was imposed on the exporter under Section 114 of the Customs Act, 1962, and Rs. 2,00,000/- on the Managing Partner of the exporter. The Commissioner held that the Managing Partner actively managed the firm's affairs concerning the export and was present during the examination of the goods, making him liable for the penalty.

3. Validity of the Export License and Compliance with EXIM Policy 2002-2007:
The appellants contended that they had obtained the necessary export license for "Joint Samisen Musical Instruments parts made out of Red Sanders Wood" and had followed a cumbersome procedure for obtaining the license from the Forest Department. The Principal Chief Conservator of Forests had granted the license and permission to export the item after due verification. The appellants argued that the items had assumed the nature of parts of the said musical instrument and were in compliance with the EXIM Policy 2002-2007.

4. Discrepancies in the Description of Goods and Their Classification as Prohibited Items:
The Customs Officers, upon examination, found that the goods presented for export were irregularly shaped, roughly squared, and trimmed logs of Red Sanders Wood, which did not appear to be parts of the Samisen musical instrument. The Forest Officers initially certified the goods as parts of the musical instrument but later retracted their certification upon further examination by the Customs Officers.

5. Examination and Certification by Forest Officers versus Customs Officers' Findings:
The appellants relied on certificates issued by the Divisional Forest Officer and the Principal Chief Conservator of Forests, which certified the goods as parts of the Samisen musical instrument. However, the Customs Officers, based on their examination and reference to sources like Britannica Encyclopaedia and extracts from "Music Instruments of the World," concluded that the items had not acquired the shape of musical parts. The Tribunal noted that the Forest Officers had initially certified the goods but later retracted their certification upon the Customs Officers' request.

6. Redemption of Confiscated Goods and Setting Aside Penalties:
The Tribunal concluded that the Revenue had not established that the appellants attempted to ship prohibited Red Sanders Wood against the provisions of the policy. The Tribunal held that there was no attempt by the exporter or the Managing Partner to abet or commit any offense, and hence, absolute confiscation was not justified. The Tribunal ordered the matter to be remanded to the Commissioner to grant redemption of the seized goods on payment of appropriate redemption fine, considering the margin of profit. The penalties imposed on the exporter and the Managing Partner were set aside.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the Commissioner to grant redemption of the seized goods on payment of an appropriate fine, with an opportunity of hearing to the appellants. The penalties imposed were also set aside.