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TMI Blog2019 (12) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... , while the Appellant herein, Shri Anil Kapani visited DRI(HQ) and claimed ownership of the goods. If the foreign supplier or Kolkata Customs officials had informed the Appellant or IEC Holder regarding this, a correction could have been done under Section 149 of the Customs Act 1962 by amending the documents since nothing turns on such an error because no advantage would have fallen upon the Appellant or IEC Holder as this is a purely technical and clerical issue since Registration Certificate from Ministry of Environment and Forests is easy to obtain by submitting the documents as required under the Standard Operating Procedure for Grant, Renewal or Cancellation of registration to the Importers of New Lead Acid Batteries under Rule 5 of the Batteries (Management and Handling) Rules and also that description of goods in the Bill of Entry is based on Invoice and Packing List prepared by the supplier which admittedly was rechargeable batteries, therefore the Appellant or IEC Holder cannot be faulted. Confiscation of goods under Section 111(d) of the Customs Act 1962 cannot be sustained since lead acid rechargeable batteries are not prohibited, but restricted and can be importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries which the DRI said was Lead Acid Rechargeable Batteries. During investigation, the DRI visited the official and residential premise of IEC Holder M/s Sky Traders but did not find the IEC Holder there. However, the Appellant Shri Anil Kapani visited DRI(HQ) and claimed to be the owner of the goods and his statement was recorded under Section 108 of the Customs Act wherein he stated that he placed an order for some goods in the firm M/s Lumevox Enterprises, but when the goods arrived at Kolkata Port, M/s Lumevox Enterprises told the Appellant that there were some issues in its IEC and thus the Appellant should not use it. Thereafter, the Appellant informed the supplier M/s Capitol Group Limited to convert the Bill of Lading in the name of another IEC Holder M/s Sky Trader, which he thereafter gave to the Customs Broker, who filed the Bill of Entry in the name of M/s Sky Traders. The DRI found the rechargeable batteries under CTH 85078000 to actually be Lead Acid Rechargeable Batteries, the import of which is governed by Rule 6 of the Batteries (Management and Handling) Rules 2001 notified under Environment (Protection) Act 1986. As per Rule 6, Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice. Penalties of ₹ 5,00,000/- under Sections 112(a)(i) 112(b)(i), and of ₹ 5,00,000/- under Section 114AA of the Customs Act, 1962 were imposed on the Appellant herein vide Order-in-Original dated 30.01.2018. The Appellant herein filed an appeal before the Ld. Commissioner (Appeals), who, by the impugned order dated 13.08.2019, partially allowed the appeal by reducing the Penalty under Sections 112(a)(i) 112(b)(i) of the Customs Act, 1962 to ₹ 4,00,000/- and reducing the Penalty under Section 114AA of the Customs Act, 1962 to ₹ 4,50,000/-, but upheld the order of confiscation of goods as well as the quantum of Redemption Fine. Being aggrieved, the Appellant is in appeal before the Tribunal. 3. Shri Aakarsh Srivastava, Ld. Counsel for the Appellant has argued the matter at length and states that the impugned order has been passed by the Ld Commissioner (Appeals) after a huge delay of 10.5 months from the date of personal hearing before him and thus there has been violation of Principles of Natural Justice which also sends a wrong signal to the litigants, as held by the Hon ble Supreme Court in Joint Commissioner of Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l error since the Registration Certificate from Ministry of Environment and Forests can be obtained easily by submitting documentation as required in the Standard Operating Procedure for Grant, Renewal or Cancellation of registration to the Importers of New Lead Acid Batteries under Rule 5 of the Batteries (Management and Handling) Rules, 2001 as amended in 2010. He states that description of goods in the Bill of Entry is based on Invoice and Packing List prepared by the supplier which was Rechargeable Batteries in this instance, so there is no fault of the Appellant or the IEC Holder and therefore neither confiscation of goods is warranted nor any penalty can be imposed on the Appellant, as held by the Ld. CESTAT Delhi in Final Order numbers 53182-53183/2018 dated 26.10.2018 in the case of Shri L R Maurya vs CC Bhopal and M/s Ideal Carpets Ltd vs CC Bhopal in Appeal Numbers C/50238/2018(DB) and C/51246/2018(DB). Ld. Counsel submits that the Appellant is not in violation of Section 7 of Foreign Trade (Development Regulation) Act, 1992 as amended in 2010 read along with Rule 12 of the Foreign Trade (Regulation) Rules 1993 and Para 2.9.2 of Handbook of Procedure V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t DRI apprised them of this fact. The Appellant never knowingly or intentionally made, signed or used or caused to be made, signed or used any declaration, statement or document which was false or incorrect in any material particular, in the transaction of any business for the purposes of this Act. Registration Certificate from Central Pollution Control Board was taken as soon as it came to be known through the DRI that rechargeable batteries were of lead acid variant. Ld. Counsel submits that as seen from Appellants statement under Section 108 of the Customs Act, he immediately informed the supplier and CHA about change in name of IEC Holder from M/s Lumevox Enterprises to M/s Sky Traders, thus invoking penalty under Section 114AA of the Customs Act 1962 on the Appellant is unwarranted as held by the Ld CESTAT Mumbai in Suketu Jhaveri vs Commissioner of Customs (Import) Nhava Sheva 2014(314) ELT 828. 5. The Ld. D.R justifies the findings of the Ld. Commissioner (Appeals) and prays that the appeal may be dismissed accordingly. 6. Heard both sides and perused the appeal records. 7. In the instant case, the issue that arises for conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /BMHR/2016- Importer/HWMD/5145 dated 13.07.2016 was obtained from Central Pollution Control Board, Delhi, and this ought to be treated as valid from the date of import. I also find force in the contention of the Ld. Counsel for the Appellant that if the foreign supplier or Kolkata Customs officials had informed the Appellant or IEC Holder regarding this, a correction could have been done under Section 149 of the Customs Act 1962 by amending the documents since nothing turns on such an error because no advantage would have fallen upon the Appellant or IEC Holder as this is a purely technical and clerical issue since Registration Certificate from Ministry of Environment and Forests is easy to obtain by submitting the documents as required under the Standard Operating Procedure for Grant, Renewal or Cancellation of registration to the Importers of New Lead Acid Batteries under Rule 5 of the Batteries (Management and Handling) Rules and also that description of goods in the Bill of Entry is based on Invoice and Packing List prepared by the supplier which admittedly was rechargeable batteries, therefore the Appellant or IEC Holder cannot be faulted. Similar view has been taken by the Ld ..... 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