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TMI Blog2024 (12) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... ublished in the Official Gazette, the goods or articles etc. to conform a standard by use of the Standard Marks in public interest or for protection of human, animal or plant, health, safety of the environment or prevention of unfair trade practices or national security. In exercise of the power under Section 14, the Central Government issued the order dated 19.11.2009 in respect of the Pneumatic Tyres and Tubes of Automatic Vehicles (Quality Control) Order, 2009, which came into force on 13.05.2011. In terms of the aforesaid provisions, it is absolutely clear that no person can manufacture, import, store for sale, sell or distribute the pneumatic tyres, which do not bear the standard mark of the Bureau. The proviso enumerates the exception in respect of the pneumatic tyres manufactured in India for export or the pneumatic tyres imported by OEM for fitment on vehicles or aftersales, which are meant for exports. The appellant do not fall in either of the two exceptions carved out in the proviso and, therefore, it was mandatory that the pneumatic tyres imported by them should bear the BIS markings. The goods (tyres) imported by the appellant without any BIS markings being in violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 114AA of the Act - HELD THAT:- Though the appellant was aware of mis-declaration made in the B/Es and the prohibited nature of the goods, yet he signed false declaration and filed B/Es for the purposes of making the profit of Rs.75,000/- to Rs.1,00,000/- per container from the Noticee No.2. He has further tried to divert the issue of mis-declared quantity of tyres by producing a forged email - Considering the conduct of the appellant, there are no error in the orders of the Authorities below in confirming the penalty on the appellant under the provisions of Section 112(a)(i) and 114AA of the Act. Absolute Confiscation/Redemption of Goods - HELD THAT:- The Commissioner (Appeals) in the present case held that releasing the goods on payment of redemption fine to the appellant may lead to risk of public life and promote smuggling. The main objective of the import policy regarding tyres was to maintain quality control ensuring safety of human lives and vehicles and hence, it would not be proper to release the goods on payment of redemption fine. The Commissioner (Appeals) also noted that the goods imported without BIS Standard Markings are prohibited goods and it would not be prudent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Bank, Milavali Branch, Gwalior for the said firm; that he provided the details of online login id and password to Shri Navin Kumar; that the said current account was operated by Shri Navin Kumar only; that Shri Navin Kumar promised him to give Rs.75,000/- to Rs.1,00,000/- per container; that he neither knew nor met nor made any correspondence to any overseas suppliers who supplied the goods imported by M/s. Sai Enterprises; that all the imports were being handled by Shri Navin Kumar; that whenever the imported goods were about to reach in India, Shri Navin Kumar used to inform him and handed over the import documents, who handed over the same to G Card holder, Shri Santosh Kumar Gupta; that after clearance of the goods, he used to send the goods at the address provided by Shri Navin Kumar; that all the payments to the supplier, Customs duty and shipping line charges etc. were made by M/s. Sai Enterprises only after receipt of the same from M/s. Auto Mart India that at some instances, M/s.Auto Mart India also made duty payments from their accounts. He allegedly admitted that they intentionally did not declare the correct quantity and brand to save customs duty to gain more pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10,00,000/- (Rupees Ten Lakhs only) upon the Noticee No.2 under the provisions of Section 112(b)(i) AA of the Customs Act, 1962. (v) I impose a penalty of Rs.25,00,000/- (Rupees Twenty Five lakhs only) upon the Noticee No.2 under the provisions of Section 114AA of the Customs Act, 1962. (vi) I impose a penalty of Rs.2,00,000/- (Rupees Two Lakh only) upon the Noticee No.3 under the provisions of Section 112(b)(i) of the Customs Act, 1962. (vii) I impose a penalty of Rs.50,000/- (Rupees Fifty Thousand only) upon the Noticee No.4 under the provisions of Section 117 of the Customs Act, 1962. 5. The order was challenged only by M/s. Sai Enterprises in appeal, which has been rejected by the impugned order by the Commissioner (Appeals). Hence the present appeal has been filed by the appellant herein before this Tribunal. 6. The appeal had been listed for hearing, however, despite several opportunities having been granted, as last opportunity , no representation was made on behalf of the appellant. On the last date of hearing i.e. 18.10.2024, since the counsel appearing in the appeal had withdrawn his vakalatnam, a fresh notice was directed to be served on the appellant and it was clarifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to impose redemption fine and gives an option to the person to pay the same in lieu of confiscation. 10. Accordingly, the prayer made was to set aside the impugned order and permit release of the goods for home consumption on payment of applicable duty, redemption fine and penalty, after fresh valuation as the goods are lying for the last 3 years. Submissions of the Revenue 11. Shri Rakesh Kumar, learned Authorised Representative for the Department in the light of the findings of the authorities below submitted that it is a case of mis-declaration of the quantity and value of the goods under import without any BIS markings, which is a mandatory requirement. Since the goods found, on examination, were never declared in the BE, it was a clear case of mis-declaration. Referring to the provisions of Chapter 1(a) of the Customs Tariff Act, 1975 read with the provisions of Section 17 of BIS Act and the Pneumatic Tyres and Tubes of Automatic Vehicles (Quality Control) Order, 2009, he submitted that import of Pneumatic Tyres, which do not confirm to the BIS norms is prohibited and the goods, therefore, fall within the category of Prohibited Goods as defined under Section 2(33) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch goods, article, process, system or service conforms to the relevant standard or prescribed essential requirements. 13. Section 16 of BIS Act empowers the Central Government to notify by an order published in the Official Gazette, the goods or articles etc. to conform a standard by use of the Standard Marks in public interest or for protection of human, animal or plant, health, safety of the environment or prevention of unfair trade practices or national security. In exercise of the power under Section 14, the Central Government issued the order dated 19.11.2009 in respect of the Pneumatic Tyres and Tubes of Automatic Vehicles (Quality Control) Order, 2009, which came into force on 13.05.2011. The relevant provisions of the order is quoted below:- 3 . Prohibition regarding manufacture, sale, distribution etc:- (1) No person shall by himself or through any person on his behalf, manufacture, import, store for sale, sell or distribute Pneumatic Tyres which do not conform to the Specified Standard and which do not bear the Standard Mark of the Bureau on obtaining Certification marks licence; Provided that nothing in this Order shall apply in relation to Pneumatic Tyres for the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that pneumatic tyres imported by the appellant were required to bear the BIS markings and in absence thereof, there is a clear violation of the statutory provisions. The tyres under import do not fall in any of the exception. The non-compliance of the conditions of having the BIS markings affixed on the tyres renders the goods liable for confiscation. 16. On the issue of affixing the BIS markings in Aban Exim Pvt. Ltd. (Supra), the issue before the learned Division Bench of the Allahabad High Court was as under:- 3. Whether the Tribunal has committed an error of law in accepting and upholding the clearance for home consumption allowed by the Commissioner (Appeals) of goods otherwise prohibited for clearance for home consumption in absence of valid BIS certificate with reference to the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009, read with 2.2 of the Foreign Trade Policy and General Note 2A of the import policy regarding mandatory compliance with regard to BIS certification as per Schedule III to the import policy. 17. The learned Division Bench with reference to the 2009 Order observed that the import of prohibited goods, which are to be ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. 20. The term prohibited goods has been the subject matter of interpretation in several decisions. In the case of Aban Exim Pvt. Ltd., the import of identical goods was treated as import of prohibited goods. Reference is also invited to the decisions of the Apex Court in Sheikh Mohd. Omer (supra)and Om Prakash Bhatiya (supra) and the principles laid down have been followed by the Delhi High Court in Commissioner of Customs and Central Excise, Delhi-IV Vs. Achiever International [ 2012(286) ELT 180 (Del.)]. The principle of law as has been settled in the catena of decisions is that if there is any prohibition on the import or export of any goods under the Act, or any other law, for the time being in force, it would be considered as prohibited goods but excluding the goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the BIS markings, whereas the legal position, as discussed above, has categorically imposed such a condition and, therefore, the goods imported in violation of the said condition had rendered the goods in the category of prohibited goods , which are liable for confiscation under the Act. Misdeclaration 22. The next issue is in the context of mis-declaration of the quality, quantity and the valuation of the goods. As per records of the case, the goods declared in the B/E were Multi Brand and Multi Size Stock Lot Off the Road Tyres though on examination and further investigation from the various manufacturers of tyres, it was confirmed that the imported tyres were Passenger Car Radial Tyres . Similarly, the quantity of the goods as mentioned in the B/E No.2585131 was 1044 tyres , however, 1642 tyres were recovered and in respect of the B/E No.2624519 as against the declared quantity of 650, a total number of 787 tyres were found. Thus, there was a clear mis-declaration as to the quantum of the goods. The appellant sought justification by referring to a fake email stating that the foreign supplier had dispatched excess quantity of tyres by mistake, which is difficult for us to accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty on the appellant under the provisions of Section 112(a)(i) and 114AA of the Act. Before concluding, we would like to refer the decision of the Delhi High Court in Achiever International (supra), where penalty of equal amount was upheld both under the provisions of Section 112(a) and Section 114AA of the Act, inter alia, observing as under:- 29 . A reading of the two provisions show that they refer to different violations. In a given case, it is possible that only one provision may be attracted and in another case both provisions may be violated. When both provisions are violated, penalty under the two Sections can be imposed. There is no provision/section in the Act, which states that should penalty under one Section be imposed, penalty under the second provision should be waived . Of course, if the violations have taken place in the course of the same transaction or are a part of the same transaction and are interconnected, the quantum of penalty imposed can be appropriately modulated and rationalised. This is different from stating that penalty cannot be imposed under the two provisions. Absolute Confiscation/Redemption of Goods 25. The Adjudicating Authority had ordered abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority may allow redemption or may not allow redemption. There is no bar on the Adjudicating Authority allowing redemption of prohibited goods. The reason for such discretion left to the adjudicating authority is evident. In case of prohibited goods, the nature of the goods and the nature of the prohibition vary and cases have to be dealt with exercising discretion. For instance, spurious drugs, arms, ammunition, food which does not meet the food safety standards, etc. are harmful to the society if released to the owner and they find their way into the market. On the other hand, there could be goods which, though prohibited, may not be harmful and releasing them to the owner on payment of fine may be an option. There is absolutely no bar in Section 125 on the adjudicating authority releasing any goods whatsoever, which are prohibited or restricted on payment of redemption fine. The adjudicating authority can allow redemption under Section 125 of any goods which are prohibited either under the Customs Act or any other law on payment of fine but he is not bound to so release the goods. 26. The appellant along with the synopsis has relied on several decisions, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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