2021 (10) TMI 719 - AT - Customs

Absolute confiscation - import of Peas (Pisum Satvium) including Yellow Peas, Green Peas, Dun Peas and Kaspa Peas - restricted item or not - N/N. 37/2015 2020 dated 18.12.2019 - permission to re-export the subject goods - levy of redemption fine levied for redeeming the goods for the purpose of re-export - HELD THAT - Undisputably, the appellants were in the path of litigation when the judgment of the Hon'ble Supreme Court was rendered. Immediately on coming to know of the judgment of the Hon'ble Supreme Court in the case of Raj Grow Impex LLP 2021 (6) TMI 778 - SUPREME COURT , they have requested for permission to re-export on 18.6.2021. The request was rejected by department vide letter dated 25.6.2021 stating that the judgment is applicable only to the parties therein. Consequent to the judgment of Hon'ble Supreme Court in the case of Agricas LLP, 2020 (8) TMI 705 - SUPREME COURT the Hon'ble Bombay High Court vide judgment M/S. HARIHAR COLLECTIONS, M/S. RAJ GROW IMPEX LLP VERSUS UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF COMMERCE AND OTHERS 2020 (10) TMI 830 - BOMBAY HIGH COURT gave directions for release of the goods. This was appealed before the Hon'ble Supreme Court and the appellants were awaiting the outcome. The Hon'ble Supreme Court in the case of Raj Grow Impex LLP case, after considering all aspects has granted permission to the importer to re-export. The very same relief cannot be denied to the appellants without cogent reasons. A party who has not been able to cross the miles should not be discriminated only for the reason that they did not join in the litigation. The directions are intended to resolve the dispute for importers who are similarly placed. We therefore are of the considered opinion that the appellants have to be granted permission to re-export the goods. We hold that the order of the Commissioner (Appeals) requires modification to this extent. Levy of redemption fine levied for redeeming the goods for the purpose of re-export - HELD THAT - The appellant has not filed any appeal against such order of levy of redemption fine. This order has attained finality as against the appellant with regard to levy of redemption fine. Penalty - HELD THAT - The appellant has not challenged the order passed by the adjudicating authority imposing penalty of Rs. One crore. There are no grounds to disturb the said penalty as the same has attained finality. In the present case, the Hon'ble Supreme Court has categorically held that there cannot be any bonafide belief when the importers have taken their chance to import the goods. In such circumstances, we do find that the appellant stands any favourable chance for issue of a certificate of waiver of demurrage charges. This issue is found against the appellant. The impugned order passed by the Commissioner (Appeals) is modified to the limited extent of allowing the appellants to re-export the impugned goods on payment of redemption fine of Rs. Two crores. The imposition of penalty of Rs. One crore is sustained - appeal allowed in part.

Summary

Issues Involved:
1. Confiscation and Redemption of Imported Goods
2. Permission to Re-export Confiscated Goods
3. Imposition of Penalty
4. Waiver of Demurrage Charges

Detailed Analysis:

1. Confiscation and Redemption of Imported Goods:
The appellant, M/s. Oscar Pvt. Ltd., imported 6479.30 MTs of Green Peas, which were restricted under DGFT Notification No. 37/2015-2020 dated 18.12.2019. The original authority confiscated the goods under Section 111(d) and 111(o) of the Customs Act, 1962, but allowed redemption on payment of a fine of Rs. 2 crores. The department appealed, arguing that allowing redemption negated the government’s intent behind the restriction. The Commissioner (Appeals) upheld the confiscation but set aside the redemption option, ordering absolute confiscation.

2. Permission to Re-export Confiscated Goods:
The appellant sought permission to redeem the goods for re-export, citing the Supreme Court’s judgment in Union of India Vs. Raj Grow Impex LLP & Ors., which allowed re-export under similar circumstances. The appellant argued that the Supreme Court’s directions should apply to all similarly situated importers. The department countered that the Supreme Court’s order was in personam and only applicable to the parties in that case. The Tribunal concluded that the principle of ‘Stare Decisis’ and uniform application of law warranted extending the same relief to the appellant, allowing re-export on payment of redemption fine.

3. Imposition of Penalty:
The original authority imposed a penalty of Rs. 1 crore under Section 112(a) of the Customs Act, 1962. The appellant requested leniency, citing the stay order from the High Court of Andhra Pradesh at the time of import. However, the Tribunal upheld the penalty, noting that the appellant had not appealed against the original order imposing the penalty, which had attained finality.

4. Waiver of Demurrage Charges:
The appellant sought a demurrage waiver certificate under Regulation 6(l) of the Handling of Cargo in Customs Area Regulation, 2009, which prohibits charging rent or demurrage on goods seized or detained by customs authorities. The Tribunal rejected this request, noting that the appellant imported the goods despite knowing the potential legal dispute and subsequent detention due to the violation of the notification. The Tribunal found no grounds for issuing a waiver certificate, emphasizing that the appellant’s actions were not in bonafide belief.

Conclusion:
The Tribunal modified the Commissioner (Appeals) order to allow the appellant to re-export the goods on payment of a redemption fine of Rs. 2 crores, while sustaining the penalty of Rs. 1 crore. The request for a demurrage waiver certificate was denied. The appeal was disposed of accordingly.