2022 (6) TMI 546 - AT - Customs

Confiscation of improperly imported consignment - import of natural rubber RSS3 - restriction on import or not - N/N. 32/2015-2020 - transitional arrangement - Penalty u/s 112 of Customs Act - HELD THAT - The factual matrix of this case clearly shows that not only the goods have reached ICD Garhi, Harsaru after the issue of DGFT notification restricting the import of natural rubber through Nhava Sheva and Chennai only on 20.01.2016, but the goods were also dispatched after this date on 03.02.2016 by the overseas supplier. The Commercial invoice was also issued on 25.01.2016, five days after issue of DGFT notification. The contract, however, was signed with the overseas supplier by the appellant on 12.01.2016 before the issue of DGFT notification. It is a well settled legal principle that any contract between parties is subject to law and public policies. If the laws change making it impossible to fulfil the contracts as per the original terms, it is open for the parties to either cancel or modify the contract to bring it in conformity with the laws of their respective countries. Framing laws is the sovereign right of the state and this is not subservient to any contract between two businesses - The appellant did nothing but went ahead with inflicting the goods under a bill of lading with the port of discharge as Nhava Sheva and final destination as ICD Garhi, Harsaru. This only establishes that either the appellant was negligent or otherwise decided to import the goods in violation of the law. Whether the Nhava Sheva can be considered the port of import in this case or the ICD Garhi, Harsaru? - HELD THAT - The port of import is the port where the Bill of Entry is filed to clear the goods. It is a well settled matter that until the goods cross the customs frontiers they are supposed to be in the course of international trade. In this case, the port of import is ICD Garhi, Harsaru, through which the impugned goods could not have been imported in terms of the DGFT notification. The appellant imported in violation of the notification. Private contracts are always subject to public policy and laws and if in terms of the changed law the performance under the contract becomes impossible, the contract becomes void. Further, in this case, although the contract was signed on 12.01.2016, subsequent actions in pursuance of the contract viz., issue of the commercial invoice on 25.01.2016 and dispatch of the goods by bill of lading dated 03.02.2016 took place well after the DGFT notification. Therefore, the appellant was clearly violated the law. Penalty - HELD THAT - Ignorance of law is not an excuse and the DGFT notification was issued on 20.01.2016 and thereafter the appellant proceeded to import goods in clear violation of the notification. There are nothing bonafide in the conduct of the appellant. On the contrary, it is found that a brazen violation of law. Consequently, the penalty has been correctly imposed. The impugned order is correct and proper and calls for no interference - Appeal dismissed.

Summary

Issues:
Violation of DGFT notification dated 20.01.2016
Validity of adjudication order without a show cause notice
Applicability of DGFT notification to a pre-existing contract
Confiscation of goods under section 111(d)
Imposition of penalty under section 112(a)
Bonafide conduct of the appellant

Violation of DGFT notification dated 20.01.2016:
The case involved the import of natural rubber by M/s. Climax Overseas Private Limited, which was found to be in violation of the DGFT notification restricting imports through specific ports. The appellant imported the goods through ICD Garhi Harsaru instead of the designated ports of Chennai or Nhava Sheva. The Tribunal held that the appellant's actions clearly violated the notification, leading to the confiscation of goods and imposition of penalties.

Validity of adjudication order without a show cause notice:
The appellant argued that the adjudication order was not maintainable as no show cause notice was issued. However, the Tribunal noted that the appellant had waived the show cause notice in writing and attended a personal hearing before the Joint Commissioner. The Tribunal emphasized that the appellant could not waive the notice to expedite the process and later claim that no notice was issued.

Applicability of DGFT notification to a pre-existing contract:
The appellant contended that the import was under a transitional arrangement as the contract was signed before the issuance of the DGFT notification. The Tribunal rejected this argument, stating that private contracts cannot override public policy and laws. The Tribunal emphasized that the law prevails in case of a conflict, regardless of the date of the business contracts.

Confiscation of goods under section 111(d):
The Tribunal analyzed Section 111(d) of the Customs Act, which allows for the confiscation of goods imported contrary to any prohibition imposed by law. In this case, the goods were imported in violation of the DGFT notification, leading to their confiscation. The Tribunal upheld the confiscation of goods under this section.

Imposition of penalty under section 112(a):
Regarding the imposition of penalties under Section 112(a), the appellant argued that their conduct was bonafide and penalties should not be imposed. However, the Tribunal found that the appellant's actions constituted a clear violation of the law, and ignorance of the law was not a valid excuse. Consequently, the penalties imposed were deemed appropriate and upheld by the Tribunal.

Bonafide conduct of the appellant:
The appellant claimed that their conduct had always been bonafide, and they had no knowledge of the goods' liability to confiscation. However, the Tribunal found that the appellant proceeded to import goods in clear violation of the DGFT notification, indicating a lack of bonafide conduct. The Tribunal upheld the penalties imposed, considering the appellant's blatant violation of the law.

In conclusion, the Tribunal upheld the impugned order, stating that the appellant's actions clearly violated the law, leading to the confiscation of goods and imposition of penalties. The Tribunal emphasized the importance of complying with legal notifications and public policies, highlighting that private contracts cannot override statutory provisions.