2022 (4) TMI 1215 - AT - Customs

Import of prohibited item - second hand medical equipments - prohibited item or not - mis-declaration of the goods - imported consignments were for the purposes of its charitable activities - Confiscation - redemption fine - penalty - HELD THAT - The examination report of the Chartered Engineer, which is part of the records, is not by a private party or the one who was engaged by the appellant; he is on the panel of the Revenue because of being an expert in the relevant field since neither the importer nor the Revenue authority is the expert in that field. Hence, the opinion of an expert which is relevant (under Section 46 of the Indian Evidence Act, 1872) requires consideration. When such an expert clearly opines that the inspected equipments were not E-Waste and hazardous, the same is binding on the Revenue as well as the appellant herein, in the absence of any direct documentary evidences to the contrary. Admittedly, the appellant-importer is neither the end-user nor the trader since it is claimed that it would only pass on the imported medical equipment to other charitable organizations, for the use of the needy. The supplier/donor confirms the donation; the importer, who is not the end-user, confirms that the same would be given to the needy, either directly or through some charitable organization; and the Government, through the Ministry of Finance, has also issued Notifications from time to time relaxing the import conditions, which facts are undisputed. In the case on hand, it is observed that there is an expert opinion, who has reported that the goods imported were not E-waste or hazardous, which is not disputed. Further, since no other reason is given by the Adjudicating Authorityto hold that the items at Table 6 of the Order-in-Original are prohibited, the said finding is not sustainable. In view of the above, therefore, the order of confiscation under Section 111(d) ibid is not sustainable. Redemption Fine - HELD THAT - When the Adjudicating Authority himself has ordered amendment of bill and re-assessment insofar as items at Tables 7 and 11 of the Order-in-Original are concerned, the order of confiscation on the allegations of improper importation cannot survive. By virtue of the re-assessment, the Bill-of-Entry stands regularized and so would be the import. Consequently, Section 125 ibid will have no effect and hence, imposing redemption fine on the alleged confiscation is meaningless and the same is set aside. Levy of penalty under Sections 112(a)(i) and 112(a)(ii) - HELD THAT - Since there was no improper importation of goods and hence, there was no scope to levy any penalty under Sections 112(a)(i) and 112(a)(ii) ibid., hence, the penalty of ₹ 2,00,000/- imposed on the appellant-importer cannot also be sustained; the same is set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Import of used medical equipments and other items for humanitarian relief; Allegation of mis-declaration; Confiscation of goods; Redemption fine; Penalty under Customs Act, 1962.

Analysis:
The appellant imported used medical equipments and items for humanitarian relief, claiming they were donated and had no commercial value. The Chartered Engineer certified that the equipments were not E-Waste or hazardous, which should be binding as per Section 46 of the Indian Evidence Act, 1872. The Government had relaxed import conditions for medical equipments during the COVID-19 pandemic through various Notifications.

The Adjudicating Authority held some items as E-Waste and hazardous, ordering confiscation and imposition of duty and penalty. However, the Tribunal found the confiscation not sustainable as the goods were imported for charitable purposes during the pandemic, supported by the supplier's confirmation of donation and Government Notifications relaxing import conditions.

The Tribunal criticized the Adjudicating Authority for not considering the expert opinion and the pandemic-related import relaxations, leading to improper confiscation. The Tribunal set aside the confiscation of items listed in the Order-in-Original, stating there was no improper importation. The penalty imposed under the Customs Act, 1962, was also set aside as there was no scope for penalty due to the absence of improper importation.

The impugned order was set aside concerning mis-declaration, improper importation, redemption fine on specific items, and penalty under Section 112 of the Customs Act, 1962. The appeal was allowed, and other grounds not pressed by the appellant were not considered.