2023 (1) TMI 555 - AT - Customs

Absolute Confiscation of re-imported goods - petroleum coke - imposition of penalty under Section 112(b) of the Customs Act - rejection of the goods by the Buyer, and were accompanied with re-export invoice - HELD THAT - The learned Commissioner (Appeals) have recorded the findings that the appellant had purchased the goods for export and on being rejected by the buyer in Saudi Arabia, the goods have been re-imported and admittedly, appellant have not availed any export benefit on the impugned goods - both the identity of the goods is also established and also that the appellant had genuinely exported the goods to the user buyer in Saudi Arabia. Further, on rejection by the buyer, the appellant was obligated to re-import the goods to mitigate his loss. Further, admittedly, the re-imported goods have been found to be CPC. The minor variation in weight is normal variation in the weight of the goods, due to normal loss in transit. As per para 1.05 (Clause B) of Chapter 1 of FTP 2015-2020, provides that in case of change of policy from free to restricted/prohibited etc. the imports or export already made before the date of such regulation/restrictions will not be effected. Admittedly, the export in this case was made through shipping bill dated 01.12.2017, which is before the date of restriction imposed vide aforementioned Notifications - CPC was free for export-import on the day of export, the re-import by the appellant of the rejected goods, has to be treated as freely importable under the Foreign Trade Policy. Appeal allowed.

Summary

Issues Involved:
1. Confiscation and penalty imposition on re-imported petroleum coke under Section 112(b) of the Customs Act.

Detailed Analysis:
1. The issue in this appeal pertains to the confiscation and penalty imposition on re-imported petroleum coke under Section 112(b) of the Customs Act. The appellant filed a Bill of Entry for clearance of purportedly re-imported goods, calcined Petroleum Coke, which were claimed to have been exported but were found to have discrepancies during physical verification. The weight and marking of the re-imported goods did not match the exported goods, raising doubts about their authenticity. Additionally, import of pet coke for fuel purpose was prohibited under DGFT Notification No. 42/2015-2020, and specific industries had restrictions on pet coke import.

2. The Show Cause Notice proposed the confiscation of the goods and imposition of penalties for improper importation of restricted goods and non-compliance with Customs Act provisions. The goods were confiscated and a penalty was imposed under Section 112(b) after adjudication. The appellant's appeal was rejected by the Commissioner (Appeals), leading to the appeal before the Tribunal.

3. The appellant argued that the re-import was legitimate as the goods were returned by the buyer in Saudi Arabia due to quality issues. The appellant had exported the goods to the buyer and re-imported the rejected portion after negotiation and agreement. The appellant referenced correspondence and agreements between the parties to support their claim. The Tribunal observed that the appellant had genuinely exported the goods, re-imported the rejected portion, and the goods were identified as CPC.

4. The Tribunal considered the Customs Act provisions and relevant notifications to determine the legality of the re-import. It was noted that the re-import was within the permissible time frame and the goods were the same as those exported. The Tribunal also highlighted the Foreign Trade Policy provision that exempts goods already exported before the imposition of restrictions. Therefore, the Tribunal allowed the appeal, setting aside the impugned order and granting consequential benefits to the appellant.

5. In conclusion, the Tribunal found that the re-import of the petroleum coke by the appellant was legitimate and in compliance with the Customs Act and relevant trade policies. The discrepancies in weight and marking were considered normal variations, and the appellant's actions were deemed lawful, leading to the appeal being allowed and the impugned order being set aside.