2008 (3) TMI 190 - AT - Customs

Application for Rectification of Mistake - imported ACETONE 7& ISO PROPYL ALCOHOL confiscation upheld on ground that goods are prohibited goods allegation of violation of DGFT notification dated 16/2/04 such allegation is not correct because this notification has not been issued u/s 3 of FTDR, but has been issued u/s 5 of FTDR hence section 11 of custom wouldn t be applicable because goods are not prohibited this point was not considered by Tribunal ROM application allowed

Summary

Issues:
Rectification of Mistake (ROM) under Rule 41 of CESTAT Rules against Final Order, Allegation of not following procedure under Section 3(3) of FT (D&R) Act, 1992, Confiscation of goods under Section 111(d) of Customs Act, 1962, Applicability of DGFT Notification issued under Section 5 of FT (D&R) Act, 1992, Interpretation of legal points not pleaded before the Bench.

Analysis:
The judgment involves a Rectification of Mistake (ROM) application filed against Final Order No. 1369-1373/2006 in relation to Appeal No. C/316/2004. The appellants imported ACETONE and ISO PROPYL ALCOHOL and warehoused the goods, complying with safety provisions. However, a Show Cause Notice alleged non-compliance with Section 3(3) of the FT (D&R) Act, 1992, leading to confiscation and fines. The Tribunal upheld confiscation but set aside the penalty in its Final Order No. 1373 dated 23-8-2006.

The ROM application highlighted a legal point based on previous decisions, stating that the DGFT Notification violated was issued under Section 5, not Section 3(3) of the FT (D&R) Act, 1992. This discrepancy led to a reconsideration of the applicability of Section 11 of the Customs Act, 1962, in confiscating the goods under Section 111(d).

The Tribunal, upon careful consideration, found that the impugned goods were not prohibited goods due to the DGFT Notification being issued under Section 5, not Section 3(3) of the FT (D&R) Act, 1992. This legal point, not raised by the appellant earlier, was crucial in determining the liability for confiscation. The Tribunal, based on similar cases where the impugned goods were not deemed prohibited, allowed the ROM application, setting aside the order confiscating the goods in Appeal No. C/316/2004.

The judgment emphasizes the importance of legal interpretations and points not pleaded before the Bench, highlighting the need for thorough analysis and application of relevant legal provisions. The decision showcases the significance of procedural compliance and the impact of legal technicalities on the outcome of cases involving customs and import regulations.