2020 (2) TMI 1082 - AT - Customs

Rectification of mistake - error apparent on the face of record - release of goods - levy of demurrage charges - HELD THAT - There is no error apparent in the order passed by the Tribunal dated 27-3-2019 whereby the Tribunal after considering the submissions of both the parties and after examining the regulations of DGCA and DGFT, has directed the Customs authorities to release the goods on payment of appropriate customs duty. The Customs Department did not file any appeal against the said order of the Tribunal but at the same time did not comply with the directions to release of the impugned goods. When the importer filed an application praying for enforcement of the order and notice sent to the Department, then the Department moved an application for rectification of mistake after the expiry of about 3 months from the date of receipt of the misc. order which does not appear to be bona fide. Since the order passed by the Tribunal, dated 27-3-2019 has not been appealed against and has not been stayed, there is no justification in not giving effect to the order passed by the Tribunal. In spite of the fact that Bangalore has so many specialized agencies/manufacturers in the field of aviation, no efforts seem to have been made by the Customs to further their case and to aver that the observation by this Bench were a mistake on the record. On going through the DGCA notifications, this Bench had reasons to believe that by the sheer size and weight, the impugned goods (being less than 250 gms) are beyond the purview of the clarification issued by the DGCA/DGFT policy. In addition, the appellant has successfully demonstrated that assuming, not accepting the Department s contention on the impugned goods is correct, the restrictions of DGCA placed are apparently on the use of impugned goods by the prospective users and not by the importer under any circumstances. There is no merit in the ROM application filed by the Department - ROM application dismissed.

Summary

Issues:
Compliance of Tribunal's order for release of impugned goods, Rectification of Tribunal's order by Department.

Analysis:
1. The case involved two miscellaneous applications - one by the appellant seeking compliance of the Tribunal's order for release of impugned goods and another by the Department seeking rectification of the Tribunal's order dated 27-3-2019.

2.1. The appellant had filed an appeal against the Commissioner (Appeals)'s order and a miscellaneous application for release of impugned goods. The Tribunal allowed provisional release of goods but Customs did not comply. The Department filed a ROM application seeking rectification, citing mistakes in the Tribunal's order regarding DGCA guidelines and import restrictions.

2.2. The appellant responded, citing DGCA regulations and a clarification confirming no restrictions on model aircraft. Both sides were heard, with the appellant arguing mala fide intentions in the Department's ROM application.

3. After hearing both parties and reviewing the records, the Tribunal found no error in its order directing release of goods on payment of duty. Customs did not appeal or comply with the order, leading to the Department's belated ROM application.

4. The appellant argued the Department's ROM application was mala fide and harmful, highlighting lack of objections in previous imports. The Department cited a contrary order in a similar case.

6. The Tribunal found no error in its order, emphasizing Customs' lack of action to establish the goods as drones requiring licensing. It noted the appellant's compliance with regulations and lack of efforts by Customs to verify the goods' nature.

7. The Tribunal dismissed the Department's ROM application, allowed the appellant's application, and directed Customs to release the goods within a week or face contempt proceedings.

8. The Department's ROM application was dismissed, and the appellant's miscellaneous application was allowed.