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TMI Blog2024 (6) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... ods as defined in Section 2(33) of the CA 1962, held The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. The question raised by the appellant that when the goods have been re-exported, the question of confiscation of goods under Section 111(d) of the CA 1962 does not arise, is like putting the cart before the horse. Confiscation of offending goods under section 111(d) is an action precedent to allowing the same to be redeemed under section 125 of the CA 1962. The permission for export of prohibited goods that have been confiscated and redeemed, is an administrative order emanating from the importers request for re-export of the goods and is not flowing from Section 125 of the CA 1962 - When goods are imported in breach of statutory provisions, Section 111(d) of the CA 1962 squarely applies as the goods become offending goods liable for confiscation. Confiscation of goods in the situation of a statutory breach by imported prohibited goods , i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on a person responsible for the breach of statutory duty. No interfere should ordinarily be made by an appellate body, in the discretionary order passed by a lower authority, just because another view might be possible, except on grounds of mala fides or extreme arbitrariness. No such ground has been made out in this case. Hence this plea also does not have any merit and is rejected. The impugned order is upheld and the appeal filed by the appellant is rejected. X X X X Extracts X X X X X X X X Extracts X X X X ..... .2023. With respect to Order-in-Original dated 14.09.2022, the Ld. Commissioner (Appeals) confirmed the imposition of redemption fine and penalty but permitted re-export of the imported goods within 30 days from the date of order of the Order-in-Appeal dated 09.11.2022. With respect to the Appeal filed against letter dated 28.11.2022, the Ld. Commissioner (Appeals) remanded the matter back to the adjudicating to decide on the request made by the Appellant to export the goods to an FTWZ. Pursuant to Order-in-Appeal No. 118/2023 dated 01.03.2023, the Appellant re-exported the goods vide Shipping Bill No. 8573371 dated 18.03.2023. He stated that it is a settled position of law that no redemption fine is imposable on the goods that are re-exported. Reliance in this regard was placed on; (a) Siemens Limited v. Collector of Customs [1999 (113) E.L.T. 776 (S.C.)]. (b) Sankar Pandi v. Union of India [2002 (141) E.L.T. 635 (Mad.)], upheld by the Hon'ble Supreme Court in Union of India v. Sankar Pandi [2018 (360) E.L.T. A214 (S.C.)]. (c) Tribunal in the case of M.K.A. Chinnasamy Nadar & Sons v. CC, Tuticorin [2021 (378) E.L.T. 511 (Tri. - Chennai)] (d) M/s. Akshara & Co. v. CC, Chenn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self-explanatory are reproduced below; "10. The Power Generating Engines (Generator Sets) which are imported vide the Subject Bill of Entry falls within the range of 225 kW to 257 kW which is covered by the GSR 771 (E) amended vide GSR 232(E) which mandates Type- Approval and COP certificates for the imported Generator Sets. However, the importer has not produced any Type Approval or COP certificates. Hence, I find that as per GSR 771(e) dated 11.12.2013 it is clear that import of diesel engine for genset application, manufactured or imported into India or, diesel genset assembled or imported into India requires Type Approval and needs to comply with COP of their product(s) for the emission limits as per Environment (Protection) (Third Amendment) Rules, 2013 under Environment Protection Act, 1986. 11. In view of the above, the goods namely, "Diesel Engines"/ "Industrial Engines" of assessable value of Rs.94,89,462/- imported vide under Bills of Entry Nos. 6529513 / 04.12.2021 are liable for confiscation under Section 111(d) of the Customs Act, 1962. The importer has requested for re-export of these goods and I give the option of re-export as the goods cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in section 111 (d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions "prohibiting", "restricting" or "otherwise controlling", we cannot cut down the amplitude of the word "any prohibition" in Section 111(d) of the Act. "Any prohibition" means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. . ." 11. In Union of India v. Raj Grow Impex LLP [2021 (377) E.L.T. 145 (S.C.)], the Hon'ble Supreme Court examined the issue of absolute confiscation of prohibited goods and stated as under; "Whether the goods in question are liable to absolute confiscation? 69. Once it is clear that the goods in question are improperly imported and fall in the category of 'prohibited goods', the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke putting the cart before the horse. Confiscation of offending goods under section 111(d) is an action precedent to allowing the same to be redeemed under section 125 of the CA 1962. The permission for export of prohibited goods that have been confiscated and redeemed, is an administrative order emanating from the importers request for re-export of the goods and is not flowing from Section 125 of the CA 1962. It comes into operation only after the importer gets back title to the confiscated goods on paying the redemption fine. That the permission for re-export has been bundled and passed in a quasi-judicial order pertaining to the confiscation and redemption of goods is only for administrative convenience. Further it gives certainty to the action the importer is permitted to take post redemption of the goods. It also makes it easier for the importer, who does not have to file a fresh application for export post redemption of the goods and await an uncertain outcome. The exercise of such powers by the Proper Officer finds approval from the Apex Court. The Hon'ble Supreme Court in Hirday Narain vs Income-Tax Officer, Bareilly [1971 SCR (3) 683 / AIR 1971 SC 33] held that; "If a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .)], the Hon'ble Supreme Court examined the meaning of the word "liable" in the context of section 11AC of the Central Excise Act, 1944 ("the person who is liable to pay duty as determined under sub-section (2) of section 11A shall also be liable to pay a penalty equal to the duty so determined :") and Rule 173Q of the Central Excise Rules, 1944, ("then, all such goods shall be liable to confiscation and the manufacturer, producer, registered person of a warehouse or a registered dealer, as the case may be, shall be liable to a penalty."), which are similar to the context in this case. The Hon'ble Court held as under; 30. . . . What is the significance of the word "liable" used both in Rule 173Q and Section 11AC? Under Rule 173Q apart from confiscation of the goods the person concerned is liable to penalty. Under Section 11AC the word "also" has been used but that does not appear to be quite material in interpreting the word "liable" and if liability to pay penalty has to be fixed by the adjudicating authority. The word "liable" in the Concise Oxford Dictionary means, "legally bound, subject to a tax or penalty, under an obligation&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Proper Officer to absolutely confiscate the goods or to allow it to be redeemed on payment of a fine. To release prohibited goods without imposing a fine is not a valid option. After the appellant informed the Proper Officer that they were not in a position to fulfill the conditions of EPR 1986, it was incumbent on the Officer to confiscate the prohibited goods imported in violation of the said Rules. Once the offending goods are confiscated the title of the goods comes to be held by government and the mechanism for the importer to get back possession of the goods is by paying a redemption fine as decided by the Proper Officer. Hence the goods can only be taken repossession of with title by the importer, if he pays a fine. 16. The appellant has stated that it is a settled position of law that no redemption fine is imposable on the goods that are to be re-exported. We have earlier seen that for the Proper Officer to allow the redemption of prohibited goods is part of his discretionary jurisdiction. No court has laid down the law that prohibited goods, imported without authorization, are to be released for re-export without payment of redemption fine. Such a stance would onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; (a) Siemens Limited v. Collector of Customs [1999 (113) E.L.T. 776 (S.C.)]. (b) Sankar Pandi v. Union of India [2002 (141) E.L.T. 635 (Mad.)], upheld by the Hon'ble Supreme Court in Union of India v. Sankar Pandi [2018 (360) E.L.T. A214 (S.C.)]. (c) M.K.A. Chinnasamy Nadar & Sons v. CC, Tuticorin [2021 (378) E.L.T. 511 (Tri. - Chennai)] (d) M/s. Akshara & Co. v. CC, Chennai [2022 (3) TMI 825 - CESTAT CHENNAI] (e) Royal Import and Exports v. CC, Tuticorin [2021 (377) E.L.T. 865 (Tri. - Chennai) (f) Selvam Industries Ltd., v. Commissioner of Customs, Tuticorin reported in 2021 (377) ELT 458 (Tri Chennai) (g) Lalkamal Enterprises v. Commissioner of Customs, Chennai I reported in 2018 (364) ELT 856 (Tri Chennai) (h) Skylark Office Machines v. Commissioner of Customs, Chennai [2020 (374) E.L.T. 99 (Tri. - Chennai) (i) M/s. SDS Ramcides Crop Science Pvt. Ltd. v. CC, Chennai II [2023 (7) TMI 891 - CESTAT CHENNAI] 20. As regards the judgments, the appellant has stated that as per the decision of the Hon'ble Supreme Court in Siemens Limited (supra) and Sankar Pandi (supra), in a case of re-export, redemption fine or duty cannot be imposed. We find that the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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