2007 (12) TMI 362 - AT - Customs

Confiscation and penalty - Import of vehicle - Held that - the importer has been asked to fulfil the condition which is impossible for him to fulfil, namely, procuring Type Approval Certificate from the International Accredited Agency which has declined to issue the certificate for the reasons stated in its reply on 7-2-2007, the confiscation and penalty are not sustainable and hence, set aside - appeal allowed.

Summary

Issues:
Confiscation of imported vehicles for failure to furnish Type Approval Certificate and penalties imposed under Section 112 of the Customs Act, 1962.

Analysis:
The Commissioner of Customs confiscated Toyota Lexus LS 460 vehicles imported from Japan by the appellants for not providing the required Type Approval Certificate from an International Accredited Agency, as mandated by licensing note Para 7. The certificate was necessary for new vehicles with FOB value over USD 40,000 and engine capacity exceeding 3000 cc. Penalties of Rs. 4,00,000 and Rs. 2,00,000 were imposed on one importer, and Rs. 4,50,000 and Rs. 1,00,000 on the other.

Upon review, it was found that both importers had applied to the Ministry of Land, Infrastructure and Transport in Tokyo, Japan, the specified International Accredited Agency. The Agency responded that they could not provide the certificate due to differences in Japanese technical regulations and ECE regulations. The importers filed bill of entry only after receiving this response, raising the question of whether they could be compelled to do the impossible, as per the legal principle 'lex non cogit ad impossibilia.'

Referring to previous Tribunal decisions in similar import cases, it was noted that the liability to produce certain certificates may fall on dealers rather than importers. Citing these precedents, the judge concluded that requiring the importers to obtain a Type Approval Certificate that the Agency declined to issue was unreasonable. Therefore, the confiscation and penalties were deemed unsustainable, and the impugned orders were set aside, allowing the appeals with any consequential relief due to the appellants as per the law.