2020 (12) TMI 866 - AT - Customs

Absolute Confiscation - penalty - import of Access Control Card Readers - non-availability of BIS certificate labelling - HELD THAT - Issue decided in the case of M/S. GLOBAL ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS (NS-V) 2019 (4) TMI 1050 - CESTAT MUMBAI where it was held that the imported goods viz Access Control Card Reader cannot be released for home consumption without requisite No objection Certificate from MSAL, WPC and BIS. It is a fit case where re-export would have been ordered by the Commissioner (Appeals) on the basis of request already received in writing from the appellant by the respondent department on 10th June, 2019 since, Section 128A(3) empowers the Commissioner (Appeals) to make such further inquiry as may be necessary and pass such order - Therefore, when a request was also made by the respondent-department to the appellant to re-export the goods as noted in Order-in-Original and appellant belatedly accepted the same, there was no impediment on the part of the Commissioner (Appeals) in accepting such request and reducing the financial burden, which may be incurred by the respondentdepartment for destruction of the imported goods. It is also a fit case to reduce the penalties to the barest minimum since re-export option itself was initiated by the respondent-department and appellant agreed to comply the same. Appellant s prayer for re-export is accordingly allowed and penalties are reduce to ₹ 1,00,000/- for each count under Section 112(a)(1) 114AA of the Customs Act, 1962 - Appeal allowed in part.

Summary

Issues:
Confirmation of absolute confiscation, imposition of penalties, availability of BIS certificate, re-export permission, reduction of penalties.

Confirmation of Absolute Confiscation and Imposition of Penalties:
The case involved the confirmation of an order for the absolute confiscation of "Access Control Card Readers" along with the imposition of penalties on the appellant under Sections 111(d), 112(a)(i), and 114AA of the Customs Act, 1962. The appellant argued that they were new to the export business and unaware of the BIS certification requirement for importing the goods. They had discharged the customs duty liability and intended to re-export the goods, but the Order-in-Original was passed before their request could be considered. The appellant requested permission to re-export the goods and reduce the penalties, citing financial loss and the liability on the Customs department to destroy the goods if not re-exported.

Availability of BIS Certificate and Re-export Permission:
The appellant's counsel highlighted their lack of knowledge regarding the BIS certification requirement for importing the goods. The appellant submitted a request letter for re-export to the adjudicating authority, which was acknowledged but not acted upon by the Commissioner (Appeals). The Tribunal noted that the Customs department had asked the appellant about re-export intentions, but no response was received until a later date. The Tribunal emphasized that the Commissioner (Appeals) had the power to order re-export based on the appellant's request and the department's initiation of the re-export option. Ultimately, the Tribunal found it a fit case for re-export and reduced penalties, considering the circumstances and the appellant's compliance with the re-export request.

Reduction of Penalties:
After considering the submissions, case record, and relevant case laws, the Tribunal allowed the appeal in part. The order passed by the Commissioner of Customs (Appeals) was modified, granting the appellant's prayer for re-export and reducing the penalties imposed. The penalties were reduced to ?1,00,000 for each count under Sections 112(a)(i) and 114AA of the Customs Act, 1962. The Tribunal concluded that since the re-export option was initiated by the Customs department and the appellant agreed to comply, it was appropriate to reduce the financial burden and penalties in the given circumstances.

In conclusion, the Tribunal allowed the appeal in part, granted permission for re-export, and reduced the penalties imposed on the appellant under the Customs Act, 1962, emphasizing the importance of compliance, re-export options, and financial considerations in such cases.