2020 (12) TMI 250 - AT - Customs

Reexport of the confiscated goods - imports of old and used goods - appellant concedes that there is no cavil with confiscation under section 111(d) of Customs Act, 1962 arising from non-production of authorisation required for effecting imports of old and used goods as prescribed in paragraph no. 2.31 of Foreign Trade Policy (2015-20) notified under the Foreign Trade (Development Regulation) Act, 1992 - HELD THAT - The order of the original authority had restricted the options to that of re-export on redemption or of destruction at the cost of the appellants herein. In determining the fate of the cross-appeals filed against that order, the first appellate authority was required to decide the competing claims for permitting clearance for home consumption or absolute confiscation as the exhaustive options available under the law. Neither the reviewing authority nor the importer had favoured reexport. It is, indeed, moot if, in the absence of request from an importer and of authority conferred under Customs Act, 1962 or any other law, the proper officer of customs was empowered to insist on such and in the proceedings leading to this appeal, it is only Customs Act, 1962 that has been invoked - in affording the option to redeem goods, absolute confiscation is the consequence of default thereof. From section 125 of Customs Act, 1962, it is seen that confiscated goods vest with the Central Government and, in the absence of authority under law, or by delegation, to destroy, the adjudicating authority is required to protect such goods till appropriate disposition as prescribed by the Central Government. Learned Counsel submits that the goods have been pending for a substantially long period of time; this, undoubtedly, is a matter of concern and we concur that needless prolonging of detention is to be avoided. Accordingly, we direct that the de novo proceedings be completed within eight weeks from the date of receipt of this order by the original authority. Matter remanded to the original authority for deciding afresh on the scope for stipulating reexport in circumstances of plea for clearance for home consumption with the direction that the time limit specified supra be adhered to.

Issues:
1. Incorrect imposition of re-export as a condition for redemption under section 125 of Customs Act, 1962.
2. Competence of the first appellate authority to remand disputes back to the original authority.
3. Compliance with Hazardous Waste Rules and conditions for import of hazardous waste.
4. Applicability of the decision in Commissioner of Customs v. Atul Automations Pvt Ltd.
5. Exclusion of goods from the list of items restricted for import.
6. Liability to absolute confiscation in the absence of authorization and non-compliance with hazardous waste conditions.

Analysis:

1. The appellant imported 'digital multifunction devices Canon' without the required 'authorization' under the Foreign Trade Policy, leading to confiscation under section 111(d) of Customs Act, 1962. The original authority allowed redemption conditional upon re-export within three months or destruction at the importer's cost. The appellant challenged the imposition of re-export as a condition for redemption, citing the decision in Commissioner of Customs v. Atul Automations Pvt Ltd, which allows redemption of restricted goods upon payment of market value.

2. The competence of the first appellate authority to remand disputes back to the original authority was contested. The appellant argued that the first appellate authority exceeded the scope of appeal by directing compliance with Hazardous Waste Rules, which were not initially raised as grounds for proceeding against the imports. However, the Tribunal found no fault with the remand order, considering the need for compliance with relevant laws and the absence of authorization for import.

3. The issue of compliance with Hazardous Waste Rules and conditions for import of hazardous waste was raised. The appellant contended that the goods were wrongly subjected to conditions of re-export and destruction, contrary to the provisions of the Foreign Trade Act and Customs Act. The Tribunal emphasized the need for proper compliance and disposal of confiscated goods as per legal requirements.

4. The Tribunal referred to the decision in Commissioner of Customs v. Atul Automations Pvt Ltd to support the appellant's argument for redemption of the confiscated goods upon payment of market value. The judgment highlighted the distinction between prohibited and restricted goods for import, emphasizing the redemption of restricted items upon payment of fines under section 112(a) of the Customs Act, 1962.

5. The exclusion of the goods from the list of items restricted for import was mentioned, indicating a change in their import status. This fact was crucial in determining the liability of the goods to absolute confiscation and the applicability of relevant laws governing their import and disposal.

6. The liability to absolute confiscation in the absence of authorization and non-compliance with hazardous waste conditions was a significant issue. The Tribunal acknowledged the absence of valid 'authorization' and upheld the liability to confiscation. It emphasized the need for proper disposal of confiscated goods in accordance with legal provisions to prevent unnecessary delays in the proceedings.

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