2018 (10) TMI 572 - HC - Customs

Import of restricted item - various categories of skin shave gel in semi liquid form - absolute confiscation - penalty - Held that - Apparently, the petitioner had in the past been resorting to imports at ICD Tughlakabad from where its goods were cleared. Although, there seems to be some merit in the argument that it was compelled to import the goods at ICD Dadri on account of CONCOR s decision (for which some kind of generic approval appeared to be forthcoming from the Assistant Drug Controller), nevertheless, it cannot claim ignorance of Rules 43A/113 which continue as it were unamended. The decision of the Customs Authorities with respect to the lawfulness of imports at ICD Dadri per se cannot be faulted - absolute confiscation not justified - the penalty imposed (to the tune of 100%) appears to be excessive. The petitioner is at liberty to move the concerned Commissioner of Customs, Noida for appropriate orders to redeem the goods for the purposes of re-export - petition disposed off.

Summary

Issues:
1. Confiscation of goods and imposition of penalty by the Commissioner of Customs.
2. Importation of cosmetics items regulated under the Drugs and Cosmetics Act, 1940 and Customs Tariff Act.
3. Use of No Objection Certificate (NOC) and communication from Container Corporation of India (CONCOR) for importation.
4. Dispute over the lawfulness of imports at different inland ports.
5. Justification of absolute confiscation without redemption and excessive penalty imposition.
6. Court's decision regarding setting aside the impugned order and allowing redemption of goods for re-export.

Analysis:
1. The petitioner challenged an order by the Commissioner of Customs confiscating goods valued at ?4,45,80,352 and imposing an equivalent penalty. The goods were cosmetics items subject to regulations under the Drugs and Cosmetics Act, 1940 and Customs Tariff Act, classifiable under appropriate tariff headings. The petitioner relied on a No Objection Certificate (NOC) and a communication from CONCOR directing importation at a different port, leading to a dispute over the lawfulness of imports at ICD Tughlakabad versus ICD Dadri.

2. The petitioner argued that the confiscation order was excessive due to being compelled to import at ICD Dadri based on CONCOR's notice and NOC under the Drugs and Cosmetics Act. However, the Revenue contended that the legal position under Rule 113 remained unchanged, making imports at ICD Tughlakabad lawful. The court acknowledged the petitioner's situation but noted the importance of adhering to existing rules. The decision to confiscate without redemption and impose a 100% penalty was deemed unjustified.

3. The court held that while the petitioner's conduct warranted some fault, absolute confiscation without redemption and the excessive penalty were unwarranted. The impugned order was set aside, allowing the petitioner to seek redemption of goods for re-export by approaching the Commissioner of Customs, Noida. The Commissioner was directed to consider the petitioner's position and impose a reasonable redemption fine and penalty, thus concluding the writ petition in favor of the petitioner.

4. In conclusion, the court's decision balanced the legal requirements with the petitioner's circumstances, emphasizing the need for adherence to regulations while also ensuring fairness in the outcome. The judgment highlighted the importance of considering all relevant factors in customs matters to achieve a just and equitable resolution.