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2009 (10) TMI 792 - AT - CustomsConfiscation of imported vehicle - New Toyota Alphard Royal Lounge - confiscation of the goods is due to non-production of Type Approval Certificate/COP of an accredited agency and it is in violation of the Foreign Trade Policy - Held that - the Type Approval Certificate/COP of the international accredited agency needs to be produced if goods/cars which come into India for the first time. As seen from the records that similar car was imported through Chennai Port on 6-8-2008 and was cleared by the customs authority. While clearing the said car from Chennai Port, the customs authorities did not find any violation of the Foreign Trade Policy and hence did not order for confiscation of the said car. We find that once similar car is imported and is cleared, Type Approval Certificate for the subsequent imports need not be insisted upon - confiscation set aside - appeal allowed - decided in favor of appellant.
Issues involved:
Confiscation of imported vehicle for non-production of Type Approval Certificate, Contradiction in adjudicating authority's decision and High Court judgment, Similar import clearance without penalty at Chennai Port, Applicability of Foreign Trade Policy, Interpretation of Section 111(d) of the Customs Act, 1962, Precedent set by Tribunal and High Court on Type Approval Certificate issue. Confiscation of Imported Vehicle for Non-Production of Type Approval Certificate: The appeal challenged the confiscation of a vehicle imported by the appellant due to the absence of a Type Approval Certificate from an accredited agency, as required by the Foreign Trade Policy. The appellant argued that the Japanese authorities were not issuing such certificates, citing a similar case cleared at Chennai Port without penalty. The adjudicating authority upheld the confiscation, but the Tribunal noted that the vehicle was correctly declared and the absence of the certificate was the sole reason for confiscation. The Tribunal found this reasoning contradictory to a High Court judgment and ruled that once a similar vehicle was imported and cleared without issue, subsequent imports need not produce the Type Approval Certificate. Contradiction in Adjudicating Authority's Decision and High Court Judgment: The Tribunal observed a discrepancy between the adjudicating authority's decision to confiscate the vehicle for lack of a Type Approval Certificate and a High Court judgment that deemed such a requirement impossible to fulfill due to non-issuance by Japanese authorities. The Tribunal emphasized that the law cannot demand the impossible, as per the maxim lex non cogit ad impossibilia, and aligned with the High Court's view that importers should not be penalized for circumstances beyond their control, such as the unavailability of the certificate from the country of origin. Similar Import Clearance Without Penalty at Chennai Port: The appellant highlighted a previous import of a similar vehicle at Chennai Port, which was cleared without imposing fines or penalties despite the absence of a Type Approval Certificate. This discrepancy raised questions about the consistent application of the Foreign Trade Policy and the Customs Act, indicating a lack of uniformity in enforcement practices across different customs authorities. Applicability of Foreign Trade Policy and Section 111(d) of the Customs Act, 1962: The case revolved around the interpretation and enforcement of the Foreign Trade Policy requirements, specifically the necessity of a Type Approval Certificate for imported vehicles. The adjudicating authority justified the confiscation under Section 111(d) of the Customs Act, 1962, citing the violation of policy guidelines. However, the Tribunal emphasized the need for practical considerations and precedent set by higher courts in similar cases to ensure fair treatment of importers facing certificate unavailability issues. Precedent Set by Tribunal and High Court on Type Approval Certificate Issue: The Tribunal referenced a previous case where the issue of non-issuance of Type Approval Certificates by Japanese authorities was addressed, leading to a favorable decision for the importer based on the impossibility of fulfilling the requirement. The Tribunal reiterated the High Court's stance that importers should not be penalized for circumstances beyond their control, emphasizing the importance of aligning enforcement actions with practical realities and legal precedents to ensure consistency and fairness in customs proceedings.
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