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TMI Blog2019 (11) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... before the grant of Stay stands and thus it should be held that the appellants have imported impugned goods contrary to the prohibition in place. The Department also contends that the appellants have not submitted any concrete proof that the conditions of Para 1.5 of the FTP have been satisfied so as to be eligible for the imports despite the prohibitions. The appellants have submitted a few disconnected documents which look like sale deeds, contracts, agreements etc., however as pointed out by the Learned Commissioner AR, the documents are full of inadequacies making the authenticity of the documents subject to doubt. It is also not coming forth as to which of these documents pertain to the impugned imports. Moreover, we do not find any conclusive agreements indicating that an irrevocable letter of credit has been opened or has been enforced at the time of shipment. The appellant s argument fails on both counts and we find that they have imported the impugned goods in violation of the prohibition imposed by DGFT Notification cited supra and thus, they have rendered the impugned goods liable for confiscation and rendered themselves liable for penalty. We allow the appeals of Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/446/2007 and C/447/2007, against non-imposition of fine in lieu of confiscation. 2. The learned counsel for appellants submits that the imports were effected when the stay granted by Hon'ble High Court of Kerala was in operation; the Notification was not in force; further the High Court has specifically permitted the appellants to discharge cargo; as long as the stay was in operation it cannot be deemed the appellants have imported in contravention of any prohibition; penalty should be used for deterrence but not for retribution. He submits that the appellants have entered in to agreements with buyers prior to the coming in force of the prohibition. The goods were originally procured by the sister concerns like M/s Parisons Roller Flour Mills Pvt Ltd, M/s Parisons Exports Inc and M/s Parisons Estates and Industries Pvt Ltd. Before sale of goods to the appellants, the sale of goods was an issue between their sister concerns and M/s Intercontinental Oils & Fats Ltd and M/s Adani Wilmar Trading Pvt Ltd. All the contacts being in transition period before the prohibition came in to effect; the appellants cannot be accused of contravention of any provisions. As per Exim Policy, Parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided on merit. He submits that stay of operation of any Notification does not wipe out the very existence such statutory Notification; Hon'ble Supreme Court in the case of Shree Chamundi Mopeds Ltd Vs Church of South India Trust Association, Madras 1992 (3) S.C.C.1, held that "While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position was it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence." 3.1. He further submits that Hon'ble Apex Court, in the case of Indian Council for Enviro-Legal Action V UOI (2011)8 SCC 161, summarised (in para 223) the legal position on undeserved advantage by observing that "The other aspect which has been dealt with in great details is to neutralize any u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim order of the court. Any other view would result in the act or order of the court prejudicing a party [Board in this case] for no fault of its and would also mean rewarding a writ petitioner in spite of his failure." Learned Commissioner, AR, submits that when the Interim Stay was in operation, no SCNs or OIOs have been issued to the Appellant referring the "Port Prohibition" on the impugned import; the due action has been initiated only after the final disposal of the subject Writ Petition; therefore, the claim of the Appellant that the impugned DGFT Notification cannot be enforced on the subject import is legally not sustainable. 3.4. Placing reliance on the Principle of Estoppel, Learned AR submits that in the instant case, during the stay impugned imported goods are provisionally cleared on the basis of the undertaking of the Appellant, to produce the judgement of HC in their Writ and the consequent compliance. Under the circumstances, the 'principle of estoppel' also prevents the appellant to contest the legal action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 112(a) of the Customs Act, 1962. Penalty can be imposed, only when it is established that the goods imported are "liable to confiscation" under Section 111 of Customs Act, 1962. He relies upon (i). M/s Oceanic Shipping Agency P Ltd Vs CC 1996 (82) ELT 57 (Para.10) (ii). M/s Panorama V CC 2001 (130) ELT 877 (Para 5) 3.6. Learned Commissioner, AR submits further that the Adjudicating Authority has taken a stand that the impugned goods were 'not available' and hence could not be confiscated, though they are liable to confiscation. This stand is totally against the legal position laid by Hon'ble Supreme Court, High Courts and Tribunal; the impugned goods were cleared under bond and therefore, can be confiscated even in the absence their physical availability. He relies upon the following cases. (i). Weston Components Ltd Vs CC 2000(115) ELT 278(SC) (ii). CCE Vs Raja Impex 2009 (229) ELT 185 (HC-DB, P&J) (iii). Shiv Kripa Ispat P Ltd Vs CCE 2009 (235) ELT 623 (T-LB) (iv). CCE Vs Mithran 2017 (347) ELT 603 (HC-DB, Madras) (v). CCE Vs Shilpa Trading Company 2014 (309) ELT 641 (HC-DB, Kar) (it was held that redemption fine was imposable even if Bond/BG not in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the DGFT Notification during the material period. (*Different discrepancies in different documents; summarised for ease of reference) He submits that in view of the submissions and legal position, the appeals of the appellants are liable to be rejected and the appeals filed by Revenue are liable to be allowed. 4. Heard both sides and perused the records of the case. The brief issue that requires consideration in this case is as to whether the appellants have violated the prohibition imposed by DGFT Notification No. 39/RE2007 dated 06.10.2007; as to whether, they are liable for penalty and as to whether the Commissioner should have imposed redemption fine on the goods imported by them and cleared provisionally. Brief facts of the case are given in detail as above. Therefore, we are not repeating the same. The main contention of the appellants is two-fold. The appellants contended that in view of the Stay granted, by the Hon'ble High Court of Kerala, on the operation of Notification cited above, they have not violated any prohibition and that the agreements for sale of RBD Palm Oil or Palmolein have taken place when the prohibition was not even notified and therefore, in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means that the order which has been stayed would not be operative from the date of the passing of the Stay Order and it does mean that the said order has been wiped out from existence. He also submits that Hon'ble Supreme Court in the case of Indian Counsel for Enviro Legal Action (Supra) observed that when a party applies and gets a stay or injunction from the Court, it is always at the risk and responsibility of the party applying. Learned Commissioner arguing on the principle of merger and unjust enrichment submits threat the case is ultimately dismissed, the Interim Order stands nullified automatically; a Party cannot be allowed to take any benefit of his wrongs by getting an Interim Order and later blame it on the Court. 7. We find that Hon'ble Apex Court in the case of M/s Kanoria Chemicals (Supra) observed that: "It is equally well settled that an Order of Stay granted pending disposal of a Writ Petition of Suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such a case to put the parties in the same position they would have been put but for the Interim Order of the Court." We find that the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts, agreements etc., however as pointed out by the Learned Commissioner AR, the documents are full of inadequacies making the authenticity of the documents subject to doubt. It is also not coming forth as to which of these documents pertain to the impugned imports. Moreover, we do not find any conclusive agreements indicating that an irrevocable letter of credit has been opened or has been enforced at the time of shipment. We find that Learned Commissioner has also observed in the impugned OIO that the appellants failed to produce the relevant letters of credit and that the transitional arrangements under Para 1.5 of Foreign Trade Policy 2004-09 will be applicable only if the irrevocable letters of credit are established before the date of issue of Notification imposing restrictions. Therefore, we find that the appellant's argument fails on both counts and we find that they have imported the impugned goods in violation of the prohibition imposed by DGFT Notification cited supra and thus, they have rendered the impugned goods liable for confiscation and rendered themselves liable for penalty. 9. The appellants pleaded that they have imported the impugned goods during the operation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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