2006 (8) TMI 387 - AT - Customs

Summary

Issues Involved:
1. Applicability of Section 111(j) of the Customs Act, 1962 for confiscation of vessels, stores, and consumables.
2. Validity of port clearances and permissions for coastal conversion.
3. Delay in assessment and its implications on the removal of goods.
4. Intention to evade customs duty and the role of the Clearing Agent.
5. Procedural compliance and the legitimacy of penalties imposed.

Detailed Analysis:

1. Applicability of Section 111(j) of the Customs Act, 1962:
The Tribunal found that Section 111(j) was not applicable in this case. The vessels were imported with permissions for coastal conversion and port clearances, and there was no evidence of misdeclaration. The Tribunal noted that the proper officer's discretion in granting port clearances and permissions under Section 42 could not be re-opened without reviewing the permissions granted. The confiscation under Section 111(j) was deemed illegal as the removals were conducted with due permissions and preventive checks.

2. Validity of Port Clearances and Permissions for Coastal Conversion:
The Tribunal highlighted that the vessels were granted port clearances and permissions for coastal conversion by the proper officers. These permissions were not challenged, and the vessels were examined and found compliant. The Tribunal emphasized that the word "permission" in Section 111(j) is unqualified and includes any kind of permission granted by statutory authorities under the Customs Act, not just the 'out of charge' order under Section 47.

3. Delay in Assessment and Its Implications on the Removal of Goods:
The Tribunal observed that the delay in completing the assessment was on the part of the Customs Department, not the importers. The importers had filed Bills of Entry, obtained necessary bonds, and were ready to pay the duties. The delay in assessment did not indicate any intention to evade duty. The Tribunal applied the Doctrine of Relating Back, stating that the final assessment and out-of-charge order would relate back to the date of removal.

4. Intention to Evade Customs Duty and the Role of the Clearing Agent:
The Tribunal found no evidence of an intention to evade customs duty. The importers had submitted themselves to the jurisdiction of the Customs Authorities by filing Bills of Entry and obtaining port clearances. The Clearing Agent, M/s. J.M. Baxi & Co., acted on the assumption that the Bills of Entry would be processed and out-of-charge orders granted. The Tribunal noted that the importers had tendered bank guarantees and pay orders for the duty amounts, indicating no intention to evade duty.

5. Procedural Compliance and the Legitimacy of Penalties Imposed:
The Tribunal concluded that there was substantial compliance with the customs procedures. The importers had made full disclosures, and there were no mala fides on their part. The Tribunal noted that the delays in completing the assessment were due to the Customs Department's inaction. The penalties imposed on the importers and the Clearing Agent were set aside as there was no loss or less payment of customs duty. The Tribunal also referred to previous cases where penalties were waived, and a token redemption fine was imposed due to the lack of marketability and the re-export condition of the goods.

Conclusion:
The Tribunal set aside the confiscation orders and penalties, allowing the appeals in favor of the importers. The judgment emphasized the importance of procedural compliance, the discretionary powers of customs officers, and the lack of intention to evade duty by the importers and their agents.