2010 (3) TMI 422 - HC - Customs

Appellate order- the subject consignment sought to be imported by the Petitioner is in violation of Section 111(o) of the Customs Act, 1962. Inasmuch as, the importer has failed to obtain necessary certificate of registration/import permit under the Insecticides Act, 1968 and thus, the goods were liable to be confiscated. Commissioner (Appeals) decided in favour of petitioner. prayer for interim relief made by the revenue which was rejected by Tribunal. Petitioner invoked writ jurisdiction under article 226 of Constitution of India to implement the order of first appellate authority. Held that- revenue is bound to implement the order which is in favour of the petitioner. Respondents directed to implement the order passed by Commissioner(Appeals) subject to petitioner furnishing a bank guarantee in favour of revenue for Rs. 3,50,000/-

Issues:
Violation of Customs Act, 1962 - Section 111(o) - Failure to obtain necessary certificate of registration/import permit under Insecticides Act, 1968 - Confiscation of goods - Penalty under Section 112(a) - Appeal before Commissioner of Customs (Appeals) - Tribunal's rejection of Revenue's prayer for interim relief - Implementation of Commissioner of Customs (Appeals) order - Writ jurisdiction under Article 226 of the Constitution of India - Bank guarantee - Certificate of registration/import permit under Insecticides Act, 1968.

Analysis:

1. Violation of Customs Act, 1962 - Confiscation and Penalty:
The Joint Commissioner of Customs held that the consignment was in violation of Section 111(o) of the Customs Act, 1962, due to the importer's failure to obtain the necessary certificate of registration/import permit under the Insecticides Act, 1968. Consequently, the goods were confiscated, and a penalty was imposed under Section 112(a) of the Act.

2. Appeal before Commissioner of Customs (Appeals):
The petitioner appealed the Joint Commissioner's order before the Commissioner of Customs (Appeals), who allowed the appeal. The Commissioner noted that the appellant's argument regarding sourcing items indigenously under the Foreign Trade Policy had merit. The Commissioner found no violation of the Foreign Trade Regulation Act and set aside the redemption fine and penalty imposed on the appellant.

3. Tribunal's Rejection of Revenue's Prayer for Interim Relief:
The Revenue appealed the Commissioner of Customs (Appeals) decision before the Tribunal and sought interim relief, which was denied. Consequently, the Revenue was obligated to implement the Commissioner of Customs (Appeals) order.

4. Writ Jurisdiction under Article 226 of the Constitution of India:
The petitioner approached the High Court invoking writ jurisdiction under Article 226 of the Constitution of India when the Revenue failed to respond or indicate readiness to implement the Commissioner of Customs (Appeals) order.

5. High Court's Decision and Implementation:
The High Court directed the Revenue to implement the Commissioner of Customs (Appeals) order, subject to the petitioner furnishing a bank guarantee. The Court emphasized the Revenue's obligation to implement the order in favor of the petitioner and set conditions for bank guarantee validity and cancellation.

6. Certificate of Registration/Import Permit under Insecticides Act, 1968:
The High Court decided that the production of the certificate of registration/import permit under the Insecticides Act, 1968 would be subject to the Tribunal's appeal decision. The petitioner was granted the opportunity to make appropriate claims before the Tribunal, with the Revenue instructed to implement the order promptly after the bank guarantee's submission.

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