2021 (1) TMI 453 - AT - Customs

Absolute Confiscation - penalty u/s 112(a) of Customs Act - goods are LED chains or LED Modules? - rejection of BIS certification - primary ground for rejection of the BIS officials test report submitted by the importer appellant before the adjudication authority was that the sample forwarded by the dock officer to the concerned group was different from the photographs annexed to the test report - HELD THAT - Photographs being secondary piece of evidence which appearances can vary with the angle of photography, it should not form the basis of his decision that the goods are LED chains and not LED modules as opined by the BIS Authorities. In such an event also if discrepancy is noticed Circular No. 30/2017-Cus. dated 18.07.2017 at clause (f) of para 2 that permits redrawal of sample even for a second test could have been resorted to and the second Test report could have been accepted. This was not invoked by the adjudicating authority namely, Additional Commissioner of Customs, Gr.-VI, NS-V, JNCH nor by the Commissioner (Appeals) before passing his subsequent order for which, on the request of the appellant, a direction was given by this Bench to redraw sample from the seized imported goods and get the same tested at the Bureau of Indian Standards. In obedience to such order dated 06.10.2020 test was carried out and BIS authorities have submitted their report reconfirming that the imported goods are LED Modules standard IS 16103 and the Port Duty Officer, Mumbai forwarded the same report received through e-mail to the respondent department with a cover note that for such item compulsory BIS registration mark is not required. These two e-mail printouts are accepted as additional evidence as per Rule 23 clause (3) of the CESTAT Procedure Rule, 1992 to arriving at a conclusion that the order passed by the Commissioner (Appeals) for absolute confiscation of imported goods does not stand the test of law and the same is required to be set aside. The respondent department is directed to treat the imported goods as LED Modules for the purpose of clearance in favour of the appellant and complete the process within a month of communication of this order - Appeal allowed.

Summary

Issues:
Confirmation of order for absolute confiscation of goods under Section 111 (d) of the Customs Act, 1962 along with penalty under Section 112 (a) due to lack of BIS certification.

Analysis:
The judgment revolves around the appeal against the confirmation of the order for absolute confiscation of goods valued at &8377; 10,27,108/- under Section 111 (d) of the Customs Act, 1962, and a penalty of &8377; 1,50,000/- under Section 112 (a) by the Commissioner of Customs (Appeals). The primary issue was the rejection of the BIS officials' test report by the adjudication authority based on a discrepancy between the sample forwarded and the photographs annexed to the test report. The appellant argued that photographs are secondary evidence and can vary, suggesting that a second test could have been conducted as per Circular No. 30/2017-Cus. The Tribunal directed the redrawal of the sample, which confirmed that the imported goods were LED Modules, not LED chains as previously claimed. This new evidence was accepted, leading to the setting aside of the order for confiscation.

The Tribunal highlighted that the decision to reject the BIS test report based on photograph discrepancies was not in line with the Circular permitting a second test. The Tribunal emphasized that the second test report reconfirmed the nature of the goods as LED Modules, supported by additional evidence in the form of email printouts. These printouts were accepted as additional evidence under Rule 23 clause (3) of the CESTAT Procedure Rule, 1992. Consequently, the Tribunal allowed the appeal, setting aside the order for confiscation and directing the department to treat the goods as LED Modules for clearance within a specified timeframe.

In conclusion, the judgment underscores the importance of following due process and considering all available evidence before confirming the confiscation of goods. It highlights the significance of adhering to legal provisions, such as allowing for a second test in case of discrepancies, and accepting additional evidence to ensure a fair and just decision in customs matters.