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TMI Blog2024 (2) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... eld in the decision in HBL Power Systems Ltd v.CC, Vishakapatnam [2018 (7) TMI 793 - CESTAT HYDERABAD] where it was held 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".' It is seen that for violation of the import policy with respect to car imports, a division bench of this Tribunal has held that absolute confiscation is not warranted in its decision in J. S. Gujral v Commissioner of Customs, Chennai, [2016 (3) TMI 607 - CESTAT CHENNAI]. Therefore, this Tribunal is of the view that the order of confiscation and imposition of penalty in the appellant's case cannot be faulted. However, confining the option only to re-export on payment of redemption fine is opposed to the decisions aforementioned and is decidedly untenable - this Tribunal is of the view that the appellant is required to be extended the option to redeem the vehicle on payment of redemption fine. The order of confiscation with an option to re-export on payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs the Adjudicating Authority vide order no.101601/2023 dated 17.04.2023 noted that the importers sought clearance of the used motor vehicle under TR. The Adjudicating Authority observes that Licensing notes of Chapter 87 (3) (I) (a) states that the conditions of sl.no. 1 & 2 of the licensing notes are not applicable for individuals coming to India for permanent settlement after two years continuous stay abroad, provided that the car has been in the possession of the individual for a period of minimum one year abroad. However, when asked to provide the document evidence of fulfilment of the said conditions of T.R, the appellant had replied that he has lost the passport. The Adjudicating Authority has stated that the department had ascertained travel history from FRRO of the Ministry of Home, which on perusal indicated that the appellant had not stayed for a continuous period of two years even though the vehicle was registered at UK. The Adjudicating Authority has also stated that during the personal hearing the appellant had submitted that he did not have any additional documents other than those already submitted to prove that the car is imported under TR and has also stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was violative of the principles of natural Justice. It was also found that the appellant was not given an option to redeem the car after imposing penalty in the impugned Order-in-Original and that it appeared too harsh, as the appellant brought the car after filling valid Bill of Entry under Section 46. Therefore, the Appellate Authority remanded the matter to the Original Authority for passing an order afresh. However, in the remand proceedings the Lower Authority after recording that the importer vide their letter dated 05.03.2024 and 15.04.2024 had requested to adjudicate the case without issuing Show Cause Notice and personal hearing, with a request to take lenient view on imposing fine and penalty, there after held that the subject import is in violation of the policy conditions for import of vehicles under chapter 87 of the ITC HS classification and that the only course of action would be to uphold the sanctity of the import regulations and serve the larger public interest, which in this case is re-export of the imported vehicle. Holding thus, the Adjudicating Authority yet again ordered confiscation of the vehicle, but gave the importer only the option to re-export the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. 5. Shri. N. Satyanarayanan, learned authorised representative, reiterated the findings of the appellate authority. 6. Heard both sides and perused the appeal records. The matter is before this Tribunal after the second round of litigation before the lower authorities. In the first round of litigation, the adjudicating authority has found that the appellant is not entitled to the benefit of T.R. and thus for violation of the policy conditions, had ordered absolute confiscation of the vehicle without an option to redeem and had also imposed a penalty. It is seen that upon appeal, the Commissioner Appeals has referring to Public Notice No.3(RE- 2000)/1997-2002, dated 31.03.2000, found that passenger cars/jeeps/multi utility vehicles etc. which are in the restricted category may be imported without a license on payment of full customs duty by individuals coming to India for permanent settlement after 2 years continuous stay abroad. The appellate authority has found the absolute confiscation without the option to redeem the vehicle on payment of fine too harsh and had remanded the matter with such observations only to comply with the principles of natural justice, having found th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance of the conditions of ITC (Hs) Schedule I- import policy appended to chapter 87, that are required to be adhered while importing a passenger vehicle, a restricted item. 9. However, that does not translate into a power to the customs authorities to give re-export as the sole option upon imposing a redemption fine, as if compelling a re-export. It is seen that a division bench of this Tribunal has held in the decision in HBL Power Systems Ltd v.CC, Vishakapatnam, 2018 (362) ELT 856 (Tri- Hyd) as under: 8. We find in the case laws relied upon by the Learned Departmental Representative, the Adjudicating Authority "permitted re-export of goods" and the question was whether redemption fine can still be imposed and the decision was that redemption fine can still be imposed. The question before us is different as the importer does not want to re- export the goods and the adjudicating authority, in his Order compels him to do so by giving a conditional redemption of goods. Such a case arose in the case of Amba Lal v. Union of India & Others [1983 (13) E.L.T. 1321 (S.C.)], where the Hon'ble Apex Court did not examine this issue because the Learned ASG representing the Revenue concede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes the period of limitation mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned Counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure 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 direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prohibition relates to goods which cannot be imported by any one, such as arms, ammunition, addictive substance viz. drugs. The intention behind the provisions of Section 125 is clear that import of such goods under any circumstances would cause danger to the health, welfare or morals of people as a whole. This would not apply to a case where import/export of goods is permitted subject to certain conditions or to a certain category of persons and which are ordered to be confiscated for the reason that the condition has not been complied with. In such a situation, the release of such goods confiscated would not cause any danger or detriment to public health." The above view is also supported by the Hon'ble High Court of Calcutta in its decision in the case of CC (Preventive), West Bengal v. India Sales International reported in 2009 (241) E.L.T. 182 (Cal.). 9. The above citation is squarely applicable to the facts of the present case. Further we find that on identical issue of import of car, the Tribunal in the case of Subramanyam Iyer Ratnam v. Commissioner of Customs, Bangalore (supra) held that absolute confiscation is unjustified by relying the Hon'ble Madras High Court' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore, find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the Customs authorities with fine under Section 112(a) of the Customs Act, 1962." (emphasis supplied) 14. Therefore, this Tribunal is of the view that the order of confiscation and imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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