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TMI Blog2014 (8) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act confers a discretion upon the Adjudicating Officer to allow an option for the payment of a redemption fine in lieu of confiscation where it is found that the importation or exportation is prohibited under the Customs Act - Commissioner (Appeals) has missed the central aspect of Section 125 of the Customs Act, which is the discretionary element in the exercise of jurisdiction under Section 125 of the Customs Act. Since the Commissioner (Appeals) proceeded to apply a misconceived test under Section 125 of the Customs Act and has failed to consider this aspect, we are of the view that the ends of justice would warrant that the proceedings be restored back to the file of the Commissioner (Appeals). We, accordingly, dispose of the appeal by restoring the proceedings back to the Commissioner (Appeals), who shall decide the appeal afresh after hearing the Assessee and the Department. Since, we are remanding the matter to the file of the Commissioner (Appeals) for a fresh decision on the basis of the view which we have taken, it is not necessary for the Court to answer the question of law as framed - Decided in favour of Revenue. - Central Excise Appeal No. 137 of 2014 and Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h duty payable of ₹ 11.79 lacs. The goods were governed by the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009 read with the CBEC Circulars/Instructions dated 29 November 2011 and 15 December 2011 and a clarification of 12 July 2013. Paragraph 3 of the 2009 Order provides as follows:- Prohibition regarding manufacture, sale, distribution etc:- (1) No person shall by himself or through any person on his behalf, manufacture, import, store for sale, sell or distribute Pneumatic Tyres which do not conform to the Specified Standard and which do not bear the Standard Mark of the Bureau on obtaining Certification marks license; The Additional Commissioner in his order dated 17 July 2013 noted that the first check examination report found that a certificate of the Bureau of Indian Standards3 was available only in respect of a consignment of Nexon brand tyres but that was valid only until 30 December 2012. No BIS certificate was available in respect of the tyres of other brands. The Additional Commissioner also noted that on scrutiny of the import documents, it was found that no invoice of the manufacturer or evidence for the purchase of tyres fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on conferred by Section 125(1). On the other hand, learned counsel appearing on behalf of the assessee submitted that the option of imposing a redemption under Section 125 (1) of the Customs Act extends also to prohibited goods within the meaning of Section 2(33) of the Customs Act as was held in a judgement of the Delhi High Court in Commissioner of Customs and Central Excise Delhi-IV Versus Achiever International5. In the present case, it was submitted that the Commissioner (Appeals) furnished adequate reasons for exercising the discretion, noting that the certificate of origin issued by an authorised agency was available and some of the brands of imported goods were renowned internationally. Hence, it was urged on behalf of the assessee that there was no evidence on behalf of the revenue to suggest that the goods were of a sub-standard quality. Section 125 of the Customs Act confers upon the Adjudicating Officer a discretion to grant an option to pay a fine in lieu of the confiscation of goods whenever the confiscation is authorised by the Act and the importation or exportation is prohibited under the Act or any other law for the time being in force. Section 125 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has been formulated by the Commissioner in paragraph 4.7 of the order reads as follows:- 4.7 I agree with the appellant's contention that the adjudicating authority has not given reasons for not giving an option for redemption of the consignment against Redemption fine. I also agree with the appellant that the import of Pneumatic tyres is neither prohibited under Customs Act, 1962, nor Foreign Trade (Regulation Development) Act, 1992 or Automotive Vehicles (Quality Control) Order, 2009 and therefore even if the import of some of the Tyres was contrary to the Order, 2009, the appellant is entitled to redemption thereof on payment of appropriate Redemption Fine adjudged by the learned Additional Commissioner in terms of the provisions of Section 125 of the Customs Act, 1962. The same error has occurred in construing the judgement of the Delhi High Court in Commissioner of Customs and Central Excise Delhi-IV (supra). The Division Bench of the Delhi High Court while construing the provisions of Section 125 of the Customs Act has observed as follows:- 20. Section 125 of the Act gives discretion to the authorities to impose redemption fine and gives an option to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of a part of the consignment. The Commissioner (Appeals) held that some of the brands are renowned internationally. There has been no effort on the part of the Commissioner (Appeals) to segregate these brands from the rest. In a matter such as the present, the import of prohibited goods which are to be utilised in motor vehicles has an important bearing on the safety of the public at large. The conditions which have been imposed in the 2009 Order and in the Circular of the Board are intended to fulfil a specific purpose of protecting the public interest. In these circumstances, since the Commissioner (Appeals) proceeded to apply a misconceived test under Section 125 of the Customs Act and has failed to consider this aspect, we are of the view that the ends of justice would warrant that the proceedings be restored back to the file of the Commissioner (Appeals). We, accordingly, dispose of the appeal by restoring the proceedings back to the Commissioner (Appeals), who shall decide the appeal afresh after hearing the Assessee and the Department. Since, we are remanding the matter to the file of the Commissioner (Appeals) for a fresh decision on the basis of the view which we h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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