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TMI BlogAdvance Licence – Duty Free Imports for Re-export – Breach of Condition – Confiscation & Imposition of PenaltyX X X X Extracts X X X X X X X X Extracts X X X X ..... J These appeals are directed against the order of the Customs Excise Gold (Control) Appellate Tribunal (hereinafter Referred to as the `Tribunal') dated 20th November, 2000. By the impugned order the Tribunal allowed re-export of the three consignments of tussah silk and one consignment of silk fabric having a total value of Rs. 45,85,291/-. The Tribunal further set aside the penalties imposed on individuals by the Commissioner of Customs, Kolkatta. The individuals had filed appeals before the Tribunal against the order of the Commissioner of Customs and the Tribunal allowed the same. Hence these appeals by the Department. Briefly the facts are that M/s. Olympia Exports of New Delhi through its proprietor Shri Mahesh Chowhan imported the goods in question from Hong Kong purportedly against an advance licence. The goods in question fall within list of restricted items import whereof is permitted subject to certain conditions. The importer had obtained an advance licence in July, 1997. Against the said licence the importer had Imported and cleared five consignments of raw silk through the Kolkatta port free of duty subject to the condition that the imported goods after conversi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the letter respondent No. 1 stated that it had failed to locate that exporter. It was further stated that efforts were made to find an alternative purchaser for the goods which it had failed to arrange. Request was made to the Commissioner to grant permission to re-ship/re-export the goods comprising the said consignments. An advocate named Shri Om Prakash Chowdhary of Kolkatta sent a Power of Attorney purported to be excecuted in his favour by respondent No. 1 to the Commissioner of Customs, Kolkatta and purported to represent respondent No. 1 in the proceedings by virtue of the said Power of Attorney. It appears that in view of the representation made on behalf of respondent No. 1 a supplementary show cause notice was issued to the said respondent and its Director shri Rajesh Kumar Khattar on 11th February, 2000. Vide order dated 1st May, 2000, the Commissioner of Customs, Kolkatta confirmed confiscation of goods, duty and the penalties proposed in the show cause notice. The Commissioner found that the importer was guilty of misrepresentation of facts and falsification of documents. The import was contrary to law and therefore the goods were liable for confiscation. At this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the present is a case of fraud while in Dugar's case it was not so. Secondly; according to the learned counsel there is no valid import of goods in the present case. Rather the import is contrary to law and Section 111(d) of the Customs Act, 1962 squarely applies. In this context, he further submitted that there is not provision for re-export of goods in the Customs Act and therefore there was no question of re-export being permitted. It was pointed out that in Durgar's case because of the peculiar facts of the said case re-export was permitted in equity. The present case being a case of fraud and misrepresentation, equity had no place and therefore Dugar's case cannot be treated as a precedent. We have already noticed the facts of the present case. The goods in question are in the restricted list under the Import-Export Policy for the relevant period. The import of the goods in question is permitted only against a licence. The licence is granted subject to the condition of re-export of goods. The importer had failed to comply with the condition of re-export of finished or semi-finished goods, qua, the imports already made under the same licence. When the consignments in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricting or otherwise controlling import and export of specified goods. Such an import clearly attracts the provisions of Section 111 of the Customs Act and the appellant was within its right to confiscate the goods in question. On the power of confiscation of goods imported contrary to any prohibition or restriction under Section 111(d), this court had occasion to observe in Sheikh Mohd. Omer versus Collector of Customs, Calcutta and others [1970(2) SCC 728]: "What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country" is liable to be confiscated. "Any prohibition" referred to in theat section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in Section 111(d) of the Customs Act, 1962 includes restrictions. merly because Section 3 of the Imports and Exports (Control) Act, 1947; uses three different expressions "prohibiting", "restricting" or "otherwise controlling", we cannot cut down the amplitude of the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's case (supra) are that the importer did not disappear in that case. Rather it appeared before the Customs Authorities and claimed the right to take delivery of goods. The importer in Dugar's case participated in adjudication preceedings before the Customs Authorities and during the course of the proceedings the exporter appeared on its own and pleaded that the goods be not confiscated as title in the goods had not passed. In Dugar's case, there was a valid import licence while in the present case it is not so. There is forgery on the licence which rendered the licence invalid. Therefore, the import was without a licence. This was prohibited. In Dugar's case this court had held that none of the clauses of Section 111 of the Customs Act were attracted, the import being under a licence. The import was legal. In the present case, the import is without a valid licence and is clearly in violation of Section 111(d) and (o) of the Customs Act. This is a clear distinction between Dugar's case and the present case. Therefor, in our view Dugar's case can be of no help to the respondent No. 1. The learned senior cousel for respondent No. 1 - Shri Rajeev Dhawan had argued that the exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 113(d) and penalty under Section 114 of Customs Act. The result of the above discussion is that import of the consignments in question being contrary to law, the goods were liable to confiscation under Section 111 of the Customs Act. The order of confiscation of goods passed by the Commissioner of Customs is held to be in accordance with law. We are unable to agree with the view taken by the Tribunal in permitting re-export of the goods. Further, the Tribunal in its impugned order has waived the penalties imposed by the Commissioner on respondents 3 to 7. This part of the order of the Tribunal is without any reasons. The Tribunal has not considered the evidence against these persons, which lead the Commissioner to impose the penalties. Nothing has been said in the order to justify waiver of the penalties. Therefore, that part of the order of the Tribunal also can not be sustained. Accordingly, the impugned order of the Customs Excise and Gold (Control) Appellate Tribunal dated 20th November, 2000 is set aside and the order of the Commissioner of Customs, Kolkatta dated 1st May, 2000 is hereby restored. The appeals are thus allowed with costs. SD/- ……… ..... X X X X Extracts X X X X X X X X Extracts X X X X
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