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TMI Blog2019 (11) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... next day of the issue of show-cause notice and that too without taking proper reply to the show-cause notice and without affording proper opportunity of hearing to the appellant. The manner and the speed with which the impugned order has been passed by the Commissioner without affording adequate opportunity to the appellant to file the reply to the show-cause notice is in complete violation of the principles of natural justice. Once the appellant has produced the legally mined minerals certificate along with other documents which have also been filed along with the appeal before the Tribunal but the same have not been considered at all and the instructions issued subsequent to the filing of the shipping bills has been considered for passing of the impugned order absolutely confiscating the impugned goods - further, during the same period, identical goods were allowed to be exported under 16 shipping bills without any objection by the same Customs authorities after a proper examination and verification and the impugned goods have been absolutely confiscated on the basis of instructions issued by the Tamil Nadu Government as well as Trade Facility circular issued by the Customs Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder confiscation of 13,00,000 kgs of GARNET covered under the 16 shipping bills mentioned in Annexure-B of the impugned show-cause notice, with total declared value of ₹ 1,72,87,120/- under Section 113(d) of the Customs Act, 1962. However, since the goods are not available for physical confiscation, I refrain from redeeming the goods. iv. I impose a penalty of ₹ 10,00,000/- (Rupees ten lakhs only) on M/s. V.V. Minerals, 17-C, Keeraikaranthattu, Tisayanvilai 627657 under Section 114(i) of the Customs Act, 1962. I refrain from imposing any penalty under Section 114AA of the Customs Act on the notice. v. I confirm the demand of ₹ 20,884/- (Rupees twenty thousand eight hundred and eighty four only) incurred towards the testing charges of the export goods from the notice under Section 145 of the Customs Act, 1962. 2.1. Briefly the facts of the present case are that the appellant is a registered partnership firm carrying on the business of separation and processing of beach sand minerals for export and they are Star Trading House and they have processing units at Kanyakumari, Tirunelveli and Tuticorin Districts in Tamil Nadu and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for export to Customs area. The appellant vide their letter dt. 28/12/2016 informed the Commissioner of Customs, Cochin that the minerals have been purchased from Andhra Pradesh and have been moved already to Tamil Nadu processing unit of the appellant with all permissions and transport permits issued by Director of Mines, Andhra Pradesh and local collector s permits is not required. Thereafter, Assistant Commissioner vide letter dt. 03/01/2017 required the appellant to produce certificate / documents certifying the legal source of beach sand minerals and transport permits from the concerned District Collector under Section 50 of the Customs Act, 1962. Thereafter the appellant filed a Writ Petition (Civil) No.650/2017 before the High Court of Kerala on 06/01/2017 to quash the Trade Facility No.13/2016 issued by the Commissioner of Customs vide their letter dt. 22/12/2016. The Writ Petition was dismissed by the High court of Kerala vide judgment dt. 26/07/2018 holding that the petitioner is at liberty to export his goods as soon as he is able to satisfy the authorities on the legal source of minerals. In the meantime, DGFT issued Notification No.26/205-2020 dt. 21/08/2018 canalisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, their manager informed that 1300 MTs has already been exported and the remaining was kept in CFS and they have submitted all the documents to show that the minerals was obtained legally. But the Commissioner passed the impugned order without appreciating and considering the oral submissions made by the Senior Manager of the company on 27/07/2019 and passed the impugned order on the same day and ordered absolute confiscation of the impugned goods along with penalty. Aggrieved by the said order, the appellant is before this Tribunal. 4. Heard both sides and perused the records. 5.1. Learned counsel for the appellant filed the written submissions and has argued that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the impugned order has been passed in total violation of principles of natural justice. According to his submissions, the show-cause notice was issued on 26/07/2019 and in the show-cause notice 30 days period has been given and appellant has been called up to show cause within 30 days of receipt of it as to why the goods sought to be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined minerals from the concerned District Collector. He further submitted that the Commissioner has not applied his mind and has sought information from the District Collector, Tirunelveli who has referred the matter to the Tamil Nadu Government and no clarification was thereafter received by the Commissioner as observed by the Commissioner in the impugned order. The learned counsel further submitted that Trade Facility No.13/2016 dt. 22/12/2016 of the Cochin Custom House was issued after the impugned goods were transported to Cochin and were exported / about to be exported. The said Trade Facility circular was not in existence at that time and therefore the said goods did not require the legally mined certificate from the concerned District Collector as prescribed in the said circular. He submitted that it is a settled law that law prevalent at relevant time to be applied and it cannot be applied retrospectively. For this submission, he relied upon the decision in the case of National Engineering Industries Vs. Commissioner [2008(227) ELT A166 (SC)] wherein the Apex Court held that the law prevalent at relevant time is applicable. He further submitted that the Commissioner in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dealers Rules, 2011. According to the counsel, these instructions could not be construed as any other law in force because the said instructions do not have the force of the law as far as the Customs authorities are concerned. He further submitted that in the present case, the requirement of local District Collector s certificate, transit permits are not notified by the Central Government under Section 11(3) of the Customs Act. He also submitted that the impugned order is self-contradictory because in the order portion, the Commissioner has observed that he refrained from redeeming the Garnet sand already exported under 16 shipping bills, on the ground that they are not physically available for confiscation whereas the Commissioner has absolutely confiscated the Garnet sand physically available in the Cochin port covered by 14 shipping bills without giving the redemption option. He further relied upon the following decisions:- i. Yakub Ibrahim Yusuf Vs. CC, Mumbai [2011(263) ELT 685 (Tri. Mum.)] ii. CC(Preventive) Vs. Uma Shankar Verma [2000(120) ELT 322 (Cal.)] wherein it has been held that if the goods are not prohibited, then the same are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the show-cause notice to file the reply. But the Commissioner passed the impugned order on the next day itself i.e. 27/07/2019 without affording an opportunity of filing the reply to the show-cause notice by the appellant. The Commissioner has observed in the impugned order that the Senior Manager of the company Shri Shakti Ganapathy appeared for personal hearing on 27/07/2019 and filed written submissions whereas filing of the written submissions has been categorically denied by the counsel for the appellant. it appears strange as to how the hearing on 27/07/2019 was considered by the Commissioner to be a proper opportunity of hearing when the Commissioner himself has given 30 days time to file reply to the show-cause notice. In fact, the Commissioner has wrongly observed in the impugned order that written submissions have been filed whereas no written submission have been filed on 27/07/2019 on which the impugned order itself has been passed. It appears that the Commissioner has no regard for the principles of natural justice. The opportunity of proper hearing has to be accorded to the appellant against whom the order of absolute confiscate has been passed on the next day of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Customs Act, only customs permit is required and local mining authorities permit is not required as held in the case of Shreeji Transport Services (P) Ltd. cited supra. Further I find that during the same period, identical goods were allowed to be exported under 16 shipping bills without any objection by the same Customs authorities after a proper examination and verification and the impugned goods have been absolutely confiscated on the basis of instructions issued by the Tamil Nadu Government as well as Trade Facility circular issued by the Customs House , Cochin and that too after the filing the shipping bills. 7.3. As far as absolute confiscation of the impugned goods is concerned, I find that as per the policy prevalent during the relevant time, the natural garnet was freely exportable and importable without any restriction. Further I find that the DGFT has issued a Notification No.26/2015-2020 dt. 21/08/2018 canalising the export of beach sand minerals through M/s. Indian Rare Earths Ltd. and the appellants are now legally not authorized to export the said goods. Once the goods are found to be not prohibited, then it is mandatory for the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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