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TMI Blog2020 (12) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... t the imposition of condition of re-export under Section 125 of the Act was not justified and the imposition of such a condition is not envisaged in law and therefore, the order imposing such condition is liable to be set aside. The same is accordingly set aside. Appeal of Revenue dismissed. - C.M.A.No.1135 of 2020 and C.M.P.Nos.7176 & 9221 of 2020 - - - Dated:- 30-11-2020 - HONOURABLE DR.JUSTICE VINEET KOTHARI AND HONOURABLE MR.JUSTICE M.S.RAMESH For Appellant : Mr. R. Sankara Narayanan, ASG for Ms. Aparna Nandakumar For Respondent : Mr. S. Baskaran JUDGMENT (Made by DR.VINEET KOTHARI,J) The Revenue has filed the present appeal against the order of the learned Customs Excise and Service Tax Appellate Tribunal, Chennai (CESTAT), dated 09.09.2019, whereby the learned Tribunal allowed the appeal of the Assessee and held in favour of the Assessee that the condition of re-export could not be imposed on the assessee, while allowing the assessee to redeem the goods under Section 125 of the Customs Act. The relevant part of the order of learned Tribunal is quoted below for ready reference:- 5. The appellant has mainly contested the order given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsure 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 conditional redemption saying you can redeem only if you agree to re-export . In case of prohibited goods the adjudicating authority has only two options : (a) to allow redempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 10,000/- under Section 112 (a) of the Customs Act, 1962. Appellant preferred an appeal before the Commissioner (Appeals) and vide order impugned herein the Commissioner (Appeals) modified the order by setting aside the direction for absolute confiscation and destruction of the goods at the cost of the appellant. The goods were allowed to be redeemed on condition of re-export after payment of redemption fine which was directed to be quantified by the adjudicating authority within 15 days of the receipt of the order. The penalty imposed by the adjudicating authority was not disturbed. Aggrieved by such order of Commissioner (Appeals), the appellants are now before the Tribunal. 3. While arguing the present appeal, the learned counsel for the Appellant/Revenue department Ms.Aparna Nandakumar fairly submitted that though Section 125 of the Act does not clearly stipulate any such condition of re-export to be imposed on the importer while redeeming the goods under Section 125 of the Act, but however, since the said condition was imposed, the Assessee ought to have re-exported the goods in question and having failed to do so, the goods in question, namely AISI 430 Cold Rolled Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 9 September 2020 of Mr.R.Dinakaran, Deputy Commissioner of Customs, Group-4, Chennai II, by which the said Authority has rejected the request of the Assessee to waive the demurrage charges on the goods lying on the Customs Department premises for all this period. One of the facts stated as basis for not waiving of the demurrage in the said communication dated 9 September 2020 is that the goods were not confiscated by the Officer under the said Regulations 6(1)(l) of HCCAR, 2009. 2. The said fact is apparently incorrect and contrary to the facts on record, because the goods in question were confiscated on the ground that the goods imported by the Assessee did not bear the BIS registration and were confiscated and were directed to be returned by First Appellate Authority in favour of the Assessee on the condition of re-export, which condition could not have been imposed U/s 125 in law by the concerned Appellate Authority and the Tribunal set aside the condition of re-export, which is under challenge in the present CMA by Revenue. During the period of the proceedings pending with the Department, the Tribunal and this Court, the goods in question have remained in the premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Request for issuance of detention certificate for waiver of storage/warehouse charges-bill of entry no.8111398 dated 19.09.2018 - reg. ***** Please refer to your letter dated 21.08.2020 on the above mentioned subject wherein it was requested to issue detention certificate for waiver of storage/warehouse charges in respect of the goods covered under subject bill of entry. 2. As per Regulation 6(1)(1) of HCCAR, 2009 - The Customs Cargo Service provider shall, subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be . In the instant case the goods were neither seized nor detained by the officers as stated in the above regulation. Under such circumstances, when the goods are not detained/seized/confiscated by the officers mentioned in the regulation 6(1)(1), the customs cargo service provider need not waive any rent or demurrage on the subject goods; and the importer is liable to pay the storage charges. Since the onus of submission of the mandatory documen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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