2009 (10) TMI 930 - AT - Customs

Goods imported were not accompanied by a pre-shipment inspection certificate as required the Foreign Trade Policy 2004-2009 - Confiscation of goods - redemption fine - penalty - Held that - reliance placed in the case of Commissioner of Customs vs Senor Metals Pvt. Ltd. 2008 (8) TMI 238 - GUJARAT HIGH COURT wherein the confiscation under Section 111 (d) was set aside for the reason that the cargo did not contain any prohibited goods such as arms or ammunitions and penalty was also set aside - confiscation, redemption fine and penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Acceptance of Pre-shipment Inspection Certificate
2. Confiscation of goods for non-possession of prescribed certificate
3. Imposition of fine and penalty under Customs Act

Acceptance of Pre-shipment Inspection Certificate:
The case involved importers declaring the unit price of Heavy Melting Steel Scrap (HMSS) as USD 265 PMT and producing a Pre-shipment Inspection Certificate from M/s. Bureau Veritas, Abidjan, which was not a prescribed agency as per Appendix 28 of the Hand Book of Procedures. The certificate was deemed unacceptable under para 2.32 of the EXIM Policy 2004-09. The importers' declared value was rejected, and the value was loaded to USD 270 PMT. The issue of the certificate's acceptance was crucial in determining the subsequent actions taken by the authorities.

Confiscation of Goods for Non-Possession of Prescribed Certificate:
The authorities proposed confiscation of the goods under Section 111 (d) due to the importers' non-possession of a Pre-shipment Inspection Certificate from an approved agency. The importers were given the option to redeem the goods on payment of a fine of &8377; 5 lakhs under Section 125 (1) of the Customs Act, 1962. Additionally, a penalty of &8377; 1,25,000/- was imposed under Section 112 (a) of the Customs Act, 1962. The legality and justification of the confiscation and penalties imposed were central to the appeal.

Imposition of Fine and Penalty under Customs Act:
While the importers did not contest the valuation and paid duty on the enhanced value, they challenged the confiscation and penalties. The Tribunal referred to previous judgments, notably the Gujarat High Court's decision in Commissioner of Customs vs Senor Metals Pvt. Ltd. and the Tribunal's decision in Gujarat Pickers Inds. Ltd. vs Commissioner of Customs (Preventive), Jamnagar. These cases set aside confiscation and penalties when the cargo did not contain prohibited goods or serviceable articles. Following the precedent, the Tribunal set aside the confiscation and penalty, ultimately allowing the appeal.

This detailed analysis of the judgment highlights the issues surrounding the acceptance of the Pre-shipment Inspection Certificate, the confiscation of goods for non-possession of a prescribed certificate, and the imposition of fines and penalties under the Customs Act. The Tribunal's decision was influenced by legal precedents and the specific circumstances of the case, ultimately leading to the appeal being allowed.