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TMI Blog2018 (7) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... re the adjudicating authority may or may not give the option of redemption. In this case, the adjudicating authority has given the option of redemption with an additional condition that the goods after redemption should be re exported. Jurisdiction - whether after giving option of redemption, the adjudicating authority can also add an extra condition that the goods should be re-exported? - Held that:- Section 125 states that it does not confer upon the Authority passing the Order any power to impose any conditions while allowing redemption of goods - The scope of Section 125 of the Act is limited by the words in which it is framed and it is not open to the adjudicating authority or the Tribunal(who are creatures of the statute) to stretch, modify or restrict the scope of this Section; they are bound by it. The condition in the Order-in-Original that the goods should be re-exported after redemption is liable to be set aside - appeal allowed. - Appeal No. C/30349/2017 - Final Order No. A/30684/2018 - Dated:- 5-7-2018 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Y. Sreenivasa Reddy, Advocate for the Appellant Shri B. Guna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled by the Act of 2016 and no quality control orders were issued under the new Act. The Additional Commissioner of Customs enquired the matter from the Bureau of Indian Standards who confirmed that the BIS Act, 1986 was still in force and would continue to be so until the new Act of 2016 comes into force. The reason for this is that the BIS Act, 1986 is repealed by new BIS Act, 2016 and until the new Act comes into force, the old Act is not repealed. Aggrieved by the Order-in-Original(de-novo), the appellant appealed to the Commissioner (Appeals), who vide Order-in-Appeal No. VIZ-CUSTM-000-APP-113-16-17 dated15.02.2017, rejected the appeal. The instant appeal is against this Order in-Appeal. In their appeal, the appellant prayed that the Tribunal may please set aside the order of Lower Appellate Authority and allow the redemption of goods with reduction in penalty and pass any other order as deemed fit. During personal hearing the Learned Counsel for the appellant agreed that the goods which they have imported fall within the scope of the Steel and Steel Products (Quality Control) Order, 2016, and hence are prohibited for import by virtue of general note 2(a) of Schedule-I of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner ofCustoms Vs Elephanta Oil Industries Ltd reported in 2003 (152) ELT 257(SC) rejecting the contention of the importer that once the imported article is re-exported as directed by the Department, there is no question of levying any penalty or redemption fine. 4. Considered arguments on both sides and perused the records. It is not dispute that the steel wires which were imported did not have the BIS certification required as per the Steel and Steel Products (Quality Control)Order, 2016. It is also not in dispute that in view of the general note 2(a)of Schedule-I of the import policy framed under Foreign Trade and Development Regulations Act, 1992, mandatory BIS standards prescribed for products manufactured in India also apply to imported goods. In other words, goods which do not meet the mandatory BIS requirements cannot be imported into India. Therefore, imported goods are liable for confiscation. As per Section 125 of the Customs Act, whenever goods are confiscated the adjudicating authority has to give an option of redemption to the importer in all cases except in respect of prohibited goods where the adjudicating authority may or may not give the option of redemption. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court did not express any view on this decision and passed the order based on the concession by the ASG that the conditions should be severed from the rest of the case. Thus this issue was not examined by the Hon ble Apex Court. 6. On the other hand, the Learned Departmental Representative relied on the order of the Larger Bench of the Tribunal in the case of AK Jewellers Vs Commissioner of Customs, Mumbai, in which the Tribunal upheld the imposition of redemption fine as well as the order to re-export. Para Nos.10 and 11 reproduced as follows: 10.After going through the provisions of Section 125 of the Customs Act, we find that provisions of this section do not specifically provide that an option may be given to redeem the goods for re-export. It empowers an adjudicating authority in case of goods the import or export of which is prohibited under Customs Act or under any law in force, to grant an option to pay in lieu of confiscation such fine as the said authority thinks fit. The provisions of this section equally apply to the goods to be exported as well as imported goods. Where the goods which have been tendered for export are ordered to be confiscated and an opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Customs, Bombay Vs Elephanta Oil and Industries Ltd. Para Nos.8, 9 10 are reproduced as follows: 8.We would first deal with the contention raised by the learned senior counsel Mr. Sanghi appearing on behalf of the respondent that once the imported article is re-exported as directed by the department, there is no question of levying any penalty or redemption fine. In our view, this submission is without any substance because confiscation of goods and thereafter permitting the respondent to re-export the same would not mean that penalty under Section 112 of the Customs Act cannot be levied. The power to levy penalty under Section 112 for improper importation of goods is different from the power of confiscation of goods under Section 125and giving an option to pay in lieu of confiscation such fine as authority thinks fit which are exercised under Section 125 of the Act. Relevant part of Section 112 reads thus: - Penalty for 112. Improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne can still be imposed. The question before us is different as the importer does not want to re-export the goods and the adjudicating authority, in his Order compels him to do so by giving a conditional redemption of goods. Such a case arose in the case of Amba Lal Vs Union of India others [1983 (13) ELT 1321 (SC)], where the Hon ble Apex Court did not examine this issue because the Learned ASG representing the Revenue conceded to the decision of the Hon ble High Court that the Collector cannot impose conditions while allowing redemption. 9. In other words, the Adjudicating Authority permitting re-export of confiscated goods is different from the compelling re-export of the goods by passing an Order. Section 125 of the Customs Act reads as follows: 125. Option to pay fine in lieu of confiscation.- (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods for, where such owner is not known, the person from whose p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State Act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a Civil Court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law 12. We also find that not only Section 125 but no Section of the Customs Act, 1962 gives any officer the power to compel anyone to import or export or re-export. This Section also does not give the Adjudicating Authority the right to give a cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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