Customs, Excise and Gold Tribunal - Bangalore
M/S. Rajesh Exports Ltd., & M/S. Rajesh ... vs Commissioner Of Customs, Bangalore on 17 January, 2001
Equivalent citations: 2001(74)ECC718, 2001(129)ELT414(TRI-BANG)
ORDER
Shri S.S.Sekhon
1. These two appeals are filed against a common order, confiscating under Section 111(d) of the Customs Act gold jewellery weighing 12400 grams (approx) received at Bangalore Air Cargo Complex vide air-way bill NO. 057-JKF-5737-9103 on 8.6.99 through Air-France cargo from Newyork describing the goods as "Indian made gold". The consignee was M/s Rajesh exports ltd., Bangalore (hereinafter referred to as REI) and the goods had been sent by M/s Rajesh Imports inc., Newyork (herein after referred to as RII). The penalty of Rs. 10 lakhs ON REI and Rs. 2 lakhs on RII under Section 112(a) was also imposed, as it was found REL had concerned themselves in dealing with the imported gold which they knew or had reasons to believe was liable for confiscation and also for obstructing departmental officers from discharging their duties on RII for having abetted REL and also having concerned themselves in dealing with goods which they knew or had reasons to believe tobe liable for confiscation.
2. We have heard advocate Shri Lakshmi Narayan for the appellants and Smt Radha Arun learned SDR for the revenue and after considering the submissions made and the material on record find:
(a) The Commissioner have found the goods liable for confiscation under Section 111(d) after determining that REL are the importers of the subject jewellery on the following reasoning for confiscation:
"Gold jewellery is a restricted item and the person importing the same should possess special import licence for clearing the same. In the absence of the special import licence, the restricted item i.e., gold jewellery (unstudded) in this case has tobe considered as a restricted item/prohibited item. M/s REI have attempted to import the gold jewellery which is a restricted item without possessing a special import licence even when they were very much aware of the statutoty requirements. They took delivery of the air way bill and made an attempt to re-export the said consignment by seeking waiver of production of the special import licence. The Hon'ble Supreme Court, in the case of Seikh Mohd. Omer Vs Collector of Customs Calcutta reported in 1970 ECR 759 S.C had held that the expression "prohibition" referred to in Section 111(d) 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. Thus the goods brought into India without any import licence are liable for confiscation under the provisions of Section 111(d) of the Customs Act, 1962."
(b) It is an admitted position, that RII had sent this consignment to REI but instead of filing the papers for clearance of the said consignment they requested the Asstt Commissioner ACC, Bangalore vide a letter dated 9.6.99 for permission to reship the consignment received on 8.6.99 for permission to reship the consignment received on 8.6.99 on the ground that they are not in a position to clear the same due to price fluctuations and subsequently have also requested for waiver of production of special import licence. Investigations conducted revealed the subject goods were part of certain consignments exported to RII Newyord vide invoice No. 145 & 146 REI. Part of the said jewellery so exported was now being sent back "vide invoice No. 201 of RII to REI. It is, therefore, found that the present case is a case of re-import of 'Indian made gold jewellery' which was exported from India vide invoice No. 145 & 146 dated 13.10.98 , Were part, not impugned an export from India & the consignment in part, now have been reimported, Therefore, we cannot find any reason to apply the Import ITC(HS) classification policy for re-import of items and or find the same to be restricted item for import, in view clause 3 (j) of Foreign Trade (Exemption from Application of Rules in Certain Cases) Order 1993 which reads as under:
"3 Exemption from the application of rules - Nothing contained in the rules shall apply to the import of any goods -
(j) "from any country, which are exempted from Customs duty on re-importation under Section 20 of the Customs Act, 1962, (52 of 1962) or....".
Notification No.94/96 dt.16.12.96 exempts goods on re-importation into India, from the full duty leviable. The subject goods, under re-import, would be exempted, and would thus qualify, for the exemption from the Foreign Trade Regulation Rules, 1993 vide Clause 3 (j) extracted herein above. In this view of the matter, we cannot find any infringement of any prohibition to call for an order of confiscation under Section 111 (d). Therefore, we cannot find any reason to uphold the confiscation under Section 111 (d) of the Customs Act, on part of the goods exported out of India which are now under re-import, but not cleared, for which are now under re-import, but not cleared, for which an application for export again to another destination out of India is being sought.
(b) Once we find that the confiscation of the said goods under 111 (d) of the Customs Act, is not sustainable, the impositions of penalty under 112 (a) on REL and on RII are not called for. We cannot find any provision under Section 112 (a) to call for imposition of penalty for obstruction of the Officers from discharging duty as arrived at by the learned Commissioner as regards REL.
(c) The Advocate for the appellants has insisted for allowing the re-export of goods, since we do not find any reason to refuse the same, the same can be made on filling of proper documents as per law.
3. In View of our findings we set aside the order of confiscation under Section 111 (d) and penalties under Section 112 (a) and allow the re-shipment of the goods as desired by the owners as per law. Appeals allowed accordingly.
(pronounced and dictated in the Open Court on 29/1/2001)