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TMI Blog2008 (8) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... equently being recognized as such? (a) Whether violation of EXIM Policy 2004-09 would attract confiscation and imposition of penalty in terms of Sections 111(d) and 112 of the Customs Act, 1962? (c) Whether or not, the goods imported in violation of requirements of the provisions of the Foreign Trade Policy can be confiscated in terms of Section 111(d) of the Customs Act, 1962? (d) Whether or not, penalty under Section 112 of the Customs Act, 1962 can be imposed on such importer?" 2. The adjudicating authority came to the conclusion that the goods imported under Bill of Entry dated 25-5-2005 were not accompanied by a pre-shipment inspection certificate as required by paragraph No. 2.32 of Handbook of Procedures (Volume 1) of the Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority have been reiterated, and it was submitted that the agency in question which issued the pre-shipment certificate was not a recognized inspection agency at the time of issuance of certificate. 5. The adjudicating authority has also recorded in paragraph No. 11 of the adjudication order dated 14-7-2005 as under: "However, in view of the fact that the goods have been examined l00% and no explosive and war materials have been noticed, I take a lenient view." 6. Paragraph No. 2.32 of the Handbook of Procedures specifically deals with import of second-hand goods/waste scrap/seconds/rags and under the said paragraph, it is stated that the items specified therein may be imported without a licence/certificate/permission. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that, (a) the consignment does not contain any type of aforesaid specified items, and (b) the imported items are actually metallic waste/scrap etc. as per internationally accepted parameters for such a classification. Both these requirements of the pre-shipment certificate itself indicate that it is only an exporter who can obtain such a certification before the goods are shipped. Similarly, the second requirement of the contract stipulating that the consignment does not contain any type of specified items also, has the same underlying purpose. To wit, any of the specified items shall not be exported and correspondingly, shall not be imported. The documents have to be furnished by the exporter and are to be produced by the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary to any prohibition imposed by or under the Act, or (ii) contrary to any prohibition imposed by any other law for the time being in force. The former is not the case of revenue. In so far as the latter is concerned, there is no prohibition against import of the goods in question "Paragraph No. 2.32 of the Handbook itself specifies this. Only, the import is subject to fulfilment of stipulated conditions which are to be complied with by the exporter. Non-compliance thereof may entail an importer to undergo 100% inspection of the entire consignment. That would not tantamount to improper import of goods as required by Section 111 of the Act. 11. The view that the Court has taken, has already been taken by an other Bench of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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