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TMI Blog2019 (5) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... by three months. But, the supplier seems to have rejected the request. Therefore, after having invited an order for re-export, it is not open to the petitioner to contend that section 125 (1) does not entitle the respondent to order the re-export. Whether the goods in question are prohibited goods or not? - HELD THAT:- It is only those goods which are subjected to any prohibition under the Customs Act or any other law, that are taken to be prohibited goods. It is not the case of the respondents that the goods in question are prohibited for import under the Customs Act - the import of plant growth regulators is not prohibited absolutely. They may actually fall under the category of restricted goods , and the restriction is with regard to registration. Whether the condition regarding registration will make the goods prohibited goods? - HELD THAT:- It is interesting to see that even goods which are prohibited for import under the Customs Act or any other law for the time being in force, will not automatically become prohibited goods within the meaning of Section 2 (33) of the Customs Act, 1962, if such goods are imported after complying with the conditions for their import. In other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner to allow them to redeem the goods for home consumption upon payment of duty. But, the same was also rejected. Therefore, the petitioner is before this Court. 9. The main grounds on which the impugned order is assailed are (1) that a direction for re-export is beyond the purview of Section 125(1) of the Customs Act, 1962 and (2) that so long as the imported goods do not fall under the category of prohibited goods, there cannot be a direction to re-export. 10. The respondents have filed a counter affidavit contending inter alia that the petitioner originally accepted to re-export the goods and paid the fine and hence, they cannot go back on the same; that the goods in question cannot be imported by a person who is not registered and hence, the import by an unregistered person will tantamount to the import of prohibited goods. 11. We have carefully considered the above submissions. 12. It is no doubt true that the petitioner offered to re-export the goods, in view of the circumstances in which they were placed. By the time an order was passed giving them an option to pay fine and reexport the goods, the supplier seems to have taken a different position. It is seen fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act 1968 and formulations thereof." 17. From the above it is clear that the import of plant growth regulators is not prohibited absolutely. They may actually fall under the category of "restricted goods", and the restriction is with regard to registration. 18. In fact, the Supreme Court had an occasion to distinguish between prohibited items and restricted items, in Commissioner of Customs v. M/S. Atul Automations Pvt. Ltd. MANU/SC/0067/2019. Paragraph No.9 of the said decision may be usefully extracted as follows: "9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made Under Section 11 of the Customs Act also. Section 18A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the goods were over invoiced and there was an attempt to claim duty drawback fraudulently. Therefore, the goods were ordered to be confiscated under Section 113 (D). The question before the Supreme Court was whether they were "prohibited goods" since the export was contrary to restrictions imposed under the Act. The Supreme Court held that if the conditions are not fulfilled the goods may be branded as prohibited goods. 22. The decision in Om Prakash Bhatia was followed by the Supreme Court in Commissioner of Customs, New Delhi v. Brooks International (2009) 10 SCC 396. In fact, the issue that arose in the said case was whether goods whose market value is much less than the amount of duty drawback claimed, could be confiscated for violation of the provisions of the Customs Act, 1962. The Court followed the decision in Om Prakash Bhatia. 23. In Gurucharan Singh v. Directorate of Revenue Intelligence 2008 (224) ELT 497 (SC), the Supreme Court was concerned with a prosecution for offences punishable under Sections 132 and 135 of the Customs Act, 1962. After analyzing the provisions of Section 2 (33), Section 11, Section 50 and Section 113 (d), the Supreme Court took note of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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