9911796707
TMI Blog2013 (9) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... rter/manufacturer does not know. Jurisdiction - Whether Commissioner had the power to confiscate or initiate proceedings against the appellant had to be considered – Held that:- The matter was remanded back to the original adjudicating authority with a direction that all the issues are kept open and he should decide the issue afresh - The observations regarding bills of entry assessment and mis-declaration had come out of the consideration of legal provisions and the regulations while considering the issue - the assesse did not had the opportunity to consider the aspect and make submissions and it would be a totally new legal observation which would be unjustified to rely upon to come to a conclusion – order set aside – decided in favor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnai and Kolkata; they were to be accompanied by a pre-shipment certificate, the same were seized and proceedings were initiated which has resulted in confiscation of the consignment found in the premises of PAL and release of the same subject to payment of fine in lieu of confiscation of Rs.3 lakhs. Further 135 Kgs of goods found in the premises of MTS was also confiscated and allowed to be redeemed on fine. A penalty of Rs.1,00,000/- has been imposed on PAL and hence the appeal. 3. It was submitted by the ld. counsel that appellant is a unit located in SEZ and the normal import restrictions are not at all applicable to units located in SEZ in view of regulation 4 of special economic zone (Customs Procedure Regulations, 2003). Further, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n divert the same to DTA on payment of duty and avoid prohibitions and restrictions applicable for the same. He submits that the restrictions such as specified port, pre-shipment certificate and floor price for import could be avoided by mis-declaration. 5. We have considered the submissions made by both the sides. It is the submission of the appellant that according to regulation 4 of the special economic zone (Customs Procedures Regulation, 2003), the appellants import any goods import of which is not prohibited. Unfortunately this claim has not been examined at all by the original adjudicating authority. The regulation 4 is reproduced below: 4. Import of goods by the zone unit.- (1) The zone unit may import goods required for carryin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer) at the place of import such as port, airport, land customs station, inland container depot, and the same shall be treated as permission for transfer of goods to the zone; (iv) In case of sealed full container load (FCL) container, the goods shall be transferred to the zone on the basis of assessed bill of entry after verification of the seal, without customs escorts; (v) in case of other cargo, the goods shall be allowed to be transferred to the zone on the basis of assessed bill of entry either under customs escort or under transshipment procedure, depending on the option made by the zone unit; and for such transshipment, no separate documents shall be required to be filed and the transshipment permission shall be stamped on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit or developer through courier, customs officer in the zone shall assess the goods as per the Courier Import and Export (Clearance) Regulations, 1998. 6. From the above it can be seen that a bill of entry is required to be filed in the SEZ and after assessment a copy has to be produced in the port and the Assistant Commissioner is required to grant permission and allow clearance without examination of the goods and only on verification of the seal. The government places full trust in the units of SEZ and therefore neither there is customs escort nor there is examination of goods and based on the declaration goods are allowed to be taken to SEZ. In this case the bills of entry were filed by the appellant on 17.02.05 in the SEZ whereas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on this letter also requires reconsideration. Once in terms of law if the restrictions cannot be applied to SEZ unit, the confiscation and penalty cannot be sustained. Since this most important aspect has not been considered by the Commissioner and the procedure prescribed in the regulations and the effect thereof have also not been considered, the matter has to be remanded. We are conscious of the fact that our observations regarding bills of entry assessment and mis-declaration have come out of the consideration of legal provisions and the regulations while considering the issue and while considering the submission about regulations but the appellant did not have the opportunity to consider this aspect and make submissions and it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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