2011 (8) TMI 604 - HC - Customs

Sample drew from tank revealed that requirement of ATF (Aviation Turbine Fuel) were met which could be imported only by Indian Oil Corporation through Exim policy fine of 1.5 Crore were imposed - Assessee placed orders for importing Superior Kerosene Oil and when the goods failed the test they declined to receive the goods and consignment was re-exported - Held That - Authorities should have made further investigations to find out the motive of export of said goods. If the assessees had no intention of importing Aviation Turbine Fuel which requires licence they cannot not be held liable. Case of mis-declaration is not conclusively established.

Summary

Issues:
1. Confiscation of goods under Section 111(d) of the Customs Act and imposition of fine and penalty.
2. Determination of the nature of imported cargo - Superior Kerosene Oil (SKO) or Aviation Turbine Fuel (ATF).
3. Allegation of mis-declaration and contravention of law.
4. Justification of confiscation, fine, and penalty by the authorities.
5. Liability of importers and exporters under the Customs Act.

Analysis:

Issue 1: Confiscation of goods under Section 111(d) of the Customs Act and imposition of fine and penalty.
The Tribunal set aside the order passed by the Commissioner of Customs, which confiscated the goods and imposed a fine and penalty under Section 111(d) of the Customs Act. The Tribunal allowed the goods to be re-exported, leading to an appeal by the Revenue.

Issue 2: Determination of the nature of imported cargo - SKO or ATF.
The dispute arose regarding the nature of the imported cargo, whether it was Superior Kerosene Oil (SKO) or Aviation Turbine Fuel (ATF). Various test reports and expert opinions were considered by the Tribunal to ascertain the true nature of the goods.

Issue 3: Allegation of mis-declaration and contravention of law.
The Revenue contended that the imported goods were ATF, satisfying all requirements except for electrical conductivity, indicating mis-declaration. However, the Tribunal found that the goods did not specifically possess the characteristics of ATF, leading to doubts about mis-declaration and contravention of law.

Issue 4: Justification of confiscation, fine, and penalty by the authorities.
The Revenue argued that mis-declaration was evident as the imported goods could be sold as ATF after adding a component. However, the Tribunal disagreed, stating that the goods did not meet all ATF specifications and that further investigations were necessary to establish mis-declaration conclusively.

Issue 5: Liability of importers and exporters under the Customs Act.
The importers placed orders for Superior Kerosene Oil, and upon non-satisfaction of tests, declined to receive the goods, which were subsequently re-exported. The exporters produced documents showing the exported goods as SKO, not ATF. The Tribunal found no mis-declaration, revenue loss, or intention to import ATF without a license, leading to the dismissal of the appeal by the Revenue.

In conclusion, the Tribunal's decision was upheld, favoring the assessee and rejecting the Revenue's appeal. The order of confiscation, duty levy, and penalty was deemed unsustainable and without legal authority, with each party bearing their own costs.