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2020 (10) TMI 830 - HC - CustomsValidity of Notification dated 29.03.2019 - the notification was amending the import policy in respect of peas (pisum sativum) including yellow peas, green peas, dun peas and kaspa peas having Exim code 0713 1000 - goods were put into restricted category via the said notification - Rajasthan High Court by order dated 20.07.2019 issued notice and stayed the operation and effect of the aforesaid notification and trade notice qua the petitioner. HELD THAT - The jurisdiction conferred on the Principal Commissioner of Customs or Commissioner of Customs under sub-section (2) of section 129 D is revisional and not review; it is a suo-motu revisional jurisdiction which is exercised by either of the above two officers for the purpose of satisfying himself as to the legality or propriety of any decision or order of an adjudicating authority subordinate to him - The time limit for passing an order under sub-section (2) of section 129D is three months which is provided in sub-section (3) though the said period can be extended by another thirty days by the Central Board of Indirect Taxes and Customs. Sub-section (4) clarifies that if pursuant to an order passed under sub-section (2), the adjudicating authority or any officer of customs authorized in this behalf by the Principal Commissioner of Customs or Commissioner of Customs makes an application to the Commissioner (Appeals) within the time specified, such application shall be heard by the Commissioner (Appeals) as if it were an appeal made against the decision or order of the adjudicating authority and the provisions relating to appeals shall be applicable to such application. The suo-motu revisional power under sub-section (2) of section 129 D is within a very narrow compass; to ensure that the subordinate authorities are kept within the bounds of their authority to make them act according to law; according to the procedure established by law; and according to well defined principles of justice; thus conforming to the requirement of legality or propriety - Also, consequent upon exercise of power under sub-section (2) of section 129 D, the application filed before the Commissioner (Appeals) would be treated as if it is an appeal against the decision or order of the adjudicating authority and all provisions regarding appeal shall apply to such an application. The first ground given to justify as to why the order-in-original is not legal and proper is non-issuance of show cause notice - HELD THAT - Section 124 of the Customs Act deals with issuance of show cause notice before confiscation of goods etc. It says that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing containing the grounds for the proposed action, and thereafter giving him an opportunity of making a representation in writing within reasonable time. However, the first proviso is relevant and it says that the show cause notice and the representation may at the request of the person concerned be oral. Therefore, under section 124 of the Customs Act at the request of the owner or person concerned, the show cause notice and the representation in writing may be waived and thus may be oral - In the instant case, petitioner made a request not to issue show cause notice but to give him personal hearing. This was accepted by the adjudicating authority which power admittedly he has under the first proviso to section 124 and he has given reasons for the same i.e., long pendency and perishable nature of the consignments. Non-addressal of the issue of suspension of import export code of the petitioner - HELD THAT - The adjudicating authority could not have taken up and examined such order of suspension. Besides, from a perusal of the order of suspension dated 16.12.2019 it is evident that the said order has barred the petitioner from conducting any further import and export meaning thereby that it is prospective and in no way impacted the import made prior to that date which was the subject matter of adjudication in the order-in-original. The third ground given by the Commissioner which is that the adjudication order ordered redemption of the goods on the basis of the assumption that the goods should be released against redemption fine without considering other issues, such as, suspension of import export code, restrictive nature of import, etc. - HELD THAT - This ground can be examined together with the fourth and the sixth grounds given by the Commissioner. As per the fourth ground , the adjudicating authority did not give reasons as to why absolute confiscation or re-export was not considered as an option and as per the sixth ground , enquiry was not conducted for ascertaining the market price and margin of profit for imposition of redemption fine and penalty. When the goods were not cleared, those were allowed to be warehoused under section 49 of the Customs Act and the goods remained warehoused for about nine months. Considering the long pendency of the consignment besides its perishable nature and the fact that the consignments were rotting in the open yard of the Mumbai Port Trust facing the fury of the monsoons, the adjudication was taken up on priority. Adjudicating authority noted that the imports were made in contravention of the notification dated 29.03.2019 and trade notice dated 16.04.2019. Thus, the goods became prohibited, liable for confiscation - the adjudicating authority calculated the margin of profit @ Re.1 per kg as suggested by the assessing officer and on that basis worked out the redemption fine in terms of the second proviso to sub-section (1) of section 125 - the adjudicating authority had the power to give option to the owner or person concerned to pay fine in lieu of confiscation which power he exercised and the quantum of fine was determined after considering various aspects including the margin of profit suggested by the assessing officer. The final ground given by the Commissioner is that the adjudicating authority did not discuss why he chose to rely upon the certificate of the accredited laboratory rather than referring the matter to the designated government agency - HELD THAT - The ground itself indicates that the laboratory from which the related report was obtained and which was considered is a laboratory which is accredited to the customs department. Accredited means giving official authorization or recognition. Therefore, no fault can be found in the adjudicating authority placing reliance on such report. Besides, no technical or any other fault in such report has been pointed out by the Commissioner. We cannot say that the order-in-original is unlawful or inappropriate or unjust or that the adjudicating authority acted beyond the bounds of his authority. However, since application has been filed which will now be decided by the Commissioner (Appeals) as an appeal, we only limit our examination to the justification or otherwise of not releasing the goods of the petitioner on the strength of the order dated 01.10.2020. - Petitioner has complied with the terms and conditions of the order-in-original and made the necessary payments. Out of charge has been issued. Because of warehousing of the goods under section 49 of the Customs Act, petitioner is required to pay a substantial amount to the customs authority. In the above context and after thorough consideration of all aspects of the matter, we are of the view that non-release or withholding of the imported goods of the petitioner any further would not be just and proper. At least the grounds given in the order dated 01.10.2020, which order itself was passed in a highly improper manner, do not justify that the goods should be withheld or denied release notwithstanding the order-in-original and compliance thereto. The respondents are directed more particularly respondent Nos.4 to 7 to forthwith release the goods of the petitioner - petition allowed.
Issues Involved:
1. Legality and propriety of the order-in-original. 2. Non-issuance of show cause notice. 3. Suspension of import export code. 4. Grounds for redemption fine and penalty. 5. Reliance on accredited laboratory report. 6. Non-release of goods despite compliance with the order-in-original. Issue-Wise Detailed Analysis: 1. Legality and Propriety of the Order-in-Original: The court examined whether the order-in-original, which allowed the petitioner to redeem confiscated goods upon payment of a fine, was legal and proper. The Commissioner of Customs (Import-II) had passed a review order under section 129 D(2) of the Customs Act, pointing out deficiencies in the order-in-original and directing the Additional Commissioner of Customs to apply to the Commissioner (Appeals) to set aside the order. The court found that the review order was passed in a highly improper manner, without informing or taking leave of the court, which was already seized of the matter. The court emphasized that such actions amount to interfering with the administration of justice. 2. Non-Issuance of Show Cause Notice: The adjudicating authority did not issue a show cause notice to the petitioner, as requested by the petitioner, who instead sought a personal hearing. The court noted that under section 124 of the Customs Act, the issuance of a show cause notice and representation in writing may be waived at the request of the person concerned. The adjudicating authority's decision to waive the show cause notice and proceed with a personal hearing was found to be within the bounds of the law. 3. Suspension of Import Export Code: The Commissioner’s review order criticized the adjudicating authority for not addressing the suspension of the petitioner’s import export code. The court observed that the suspension order was prospective and did not impact the imports made prior to its issuance, which were the subject matter of the adjudication. Additionally, the Supreme Court had noted that statutory appeals against such suspensions would be decided in accordance with law, thus the adjudicating authority could not have examined this aspect. 4. Grounds for Redemption Fine and Penalty: The Commissioner’s review order questioned why the adjudicating authority did not consider absolute confiscation or re-export and did not conduct an enquiry for ascertaining market price and margin of profit. The court found that the adjudicating authority had considered the perishable nature of the goods and the long pendency of the consignment, and had determined the quantum of redemption fine and penalty after considering various aspects, including the margin of profit suggested by the assessing officer. 5. Reliance on Accredited Laboratory Report: The Commissioner’s review order criticized the adjudicating authority for relying on a certificate from an accredited laboratory rather than referring the matter to a designated government agency. The court found no fault in the adjudicating authority’s reliance on the accredited laboratory’s report, noting that accredited means giving official authorization or recognition. 6. Non-Release of Goods Despite Compliance with the Order-in-Original: Despite the petitioner complying with all terms and conditions of the order-in-original and making the necessary payments, the goods were not released on the basis of letters dated 02.09.2020. The court found that withholding the goods was not justifiable, especially since the order-in-original was holding the field and had neither been set aside nor stayed. The court directed the respondents to release the goods forthwith. Conclusion: The court allowed the writ petitions, directing the respondents to release the petitioner’s goods covered by the specified bills of entry. The court refrained from imposing costs but rejected the respondents' oral prayer to keep the judgment in abeyance to enable them to move the Supreme Court. The order was to be digitally signed and acted upon by all concerned.
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