2021 (12) TMI 854 - AT - Customs

Jurisdiction - empowerment vested in the assessing officer to forbear from applying policy prescription on admitted facts pertaining to the imported goods - HELD THAT - All goods conforming to the EXIM code enumerated supra are required to comply with all three elements prescribed in policy condition no. 2 in chapter 95 of ITC HS, 2017. Admittedly, the appellant has not produced any of these and object to the sampling prescribed therein as substitute for the certificate of confirmation that was mandated till 24th December 2019. Even if the objection were to be acceptable as valid, the other two certifications prescribed therein have not been furnished. In the absence of report from the designated authority that the articles under import meet the prescribed safety standards or of a report that these are not required to conform to the detailed specifications therein, the assessing officer cannot accept a claim of exclusion to suffice in their stead. Difficulties, or commercial detriment, in complying with the sampling prescriptions is not justifiable ground for excluding the import consignment from the rigours of prescribed testing that is obligated on the importer by the Foreign Trade Policy - The records do not indicate that this facility had been offered to, or sought for, by the appellant. Neither has the appellant conformed to the policy prescriptions nor have the customs authorities enforced the prescriptions in letter and spirit. The goods are yet pending for clearance for home consumption and the samples are yet to be subjected to the prescribed test. At the same time, the importer does not have be inconvenienced by continued detention of the imported cargo while awaiting compliance with the rigours of conditions effective from 2nd December 2019 - Appeal disposed off.

Summary

Issues:
1. Empowerment of the assessing officer to forbear from applying policy prescription on imported goods.

Analysis:
The appeal challenged an order-in-appeal regarding the empowerment of the assessing officer to forbear from applying policy prescription on imported goods. The appellant contended that the assessing officer should examine the safety standards prescribed for goods instead of rigidly insisting on compliance with Foreign Trade Policy conditions in every import instance. The consignment in question consisted of imported 'car models' classified as 'toys, games, and sports requisites,' subject to safety standards for children under 14 years. However, the appellant argued that these were 'collectible models' for adults, not children.

The appellant cited the non-availability of safety tests for 'collectibles' for persons above 14 years, as confirmed by an accredited laboratory. Despite willingness to comply, the appellant objected to customs' insistence on sampling each model, leading to significant loss. The policy required detailed scrutiny, especially regarding the import policy for Toys/Dolls under BIS standards, which the appellant claimed did not apply to their import classified under chapter 95 of the Customs Tariff Act.

The judgment highlighted the necessity for compliance with policy conditions, emphasizing the requirement for certification under chapter 95 of the ITC HS 2017. The appellant failed to provide the necessary certifications or comply with the sampling requirements, which replaced the 'certificate of confirmation' until December 2019. The assessing officer could not accept exclusion claims without proper certification or compliance with testing standards, despite objections or commercial concerns.

The judgment remanded the matter back to the original authority for re-determination of compliance requirements upon the importer furnishing the prescribed certifications. It emphasized the importance of adhering to policy conditions and testing standards, directing the clearance of goods pending compliance. The decision aimed to balance importer convenience with policy enforcement, ensuring compliance with safety standards before market release.

In conclusion, the judgment addressed the issue of assessing officer empowerment in applying policy prescriptions on imported goods, emphasizing the necessity for compliance with safety standards and policy conditions, while balancing importer convenience and regulatory enforcement.