Delhi High Court
Commissioner Of Customs, Icd, Tkd vs J. S. Gujral & Anr. on 17 October, 2008
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, Rajiv Shakdher
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.10.2008
+ CUS. A. C. 6/2008 & CUS. A. C. 9/2008
COMMISSIONER OF CUSTOMS, ICD, TKD ... Appellant
- versus -
J. S. GUJRAL & ANR. ... Respondents
Advocates who appeared in this case:
For the Appellant : Mr Mukesh Anand with Ms Zeba Tarannum Khan and
Mr Shailesh Tiwary
For the Respondents : Ms Kanchan Kaur Dhodi
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
BADAR DURREZ AHMED, J (ORAL)
1. These appeals under Section 130 of the Customs Act, 1962 arise out of the common order dated 26.12.2007 passed by the Customs, Excise & Service Tax Appellate Tribunal in appeal Nos. C/412-413/2007-SM(BR). The issue raised in these appeals relates to the confiscation of two cars both being Toyota Lexus LS 460 imported by the respondents from Japan. The Commissioner of Customs had, by separate adjudication orders dated 24.05.2007, confiscated the cars under Section 111(d) of the Customs Act, 1962. CUS. A.C. Nos.6/2008 & 9/2008 Page No.1 of 6 The Commissioner of Customs, however, in the case of J. S. Gujral imposed a redemption fine of Rs 4 lacs and penalty of Rs 2 lacs whereas in the case of Mohinder Pal Singh Gujral a redemption fine of Rs 4.5 lacs and penalty of Rs 1 lac was imposed. Being aggrieved by the said confiscation orders, the respondents preferred appeals before the Tribunal. The only ground on which the confiscation was made was that the importers had not submitted Type Approval Certificate/ COP from the accredited agencies as mentioned in Policy Circular No. 26 dated 09.02.2004 for compliance of Import Licensing Notes of Chapter 87 para (7). The Commissioner of Customs, therefore, held that there was non-compliance of the provisions of the import policy with regard to the import of the said cars.
2. Paragraph (7) of the Import Licensing Notes of Chapter 87 reads as under:-
―(7) Import of new vehicles having an FOB value of US $ 40,000 or more and engine capacity of more than 3000 cc for petrol run vehicle and more than 2500 cc for diesel run vehicles by:
(a) individuals, (b) companies and firms importing under the EPCG Scheme and (c) OEMs (Original Equipment Manufacturers--who have manufacturing and service network in India will be exempt from the conditions at Sl. No. (2)(II)(c) above. However, at the time of Customs clearance, a Type Approval Certificate / COP of an international accredited agency from the country of origin, including a CUS. A.C. Nos.6/2008 & 9/2008 Page No.2 of 6 notarized English translation thereof, shall be furnished. This Type Approval shall stipulate that the vehicle to be imported complies with all the ECE Regulations for the complete vehicle. The accredited agencies have been notified vide Policy Circular No. 26 dated 09.02.2004.‖ A reading of the said provision clearly stipulates that at the time of customs clearance a Type Approval Certificate / COP of an international accredited agency from the country of origin, including a notarized English translation thereof, shall be furnished. It is also a requirement that the Type Approval Certificate shall stipulate that the vehicle to be imported complies with all the ECE Regulations. The said paragraph (7) also indicates that the accredited agencies have been notified vide Policy Circular No. 26 dated 09.02.2004.
3. The said Policy Circular No. 26 has been issued by the Directorate General of Foreign Trade, Government of India to all licensing authorities and to all Commissioners of Customs. The said Circular notifies the list of international accredited agencies for issuance of a Type Approval Certificate / COP. The relevant entry for the purposes of these appeals is at serial No. 33 which pertains to Japan, which is the country of origin in respect of the said cars. The said entry indicates the accredited agency as ―Ministry of Land, CUS. A.C. Nos.6/2008 & 9/2008 Page No.3 of 6 Infrastructure and Transport, 2-1-3, Kasumigaseki, Chiyoda-ku Tokyo 100-8918 Japan‖. The telephone and fax numbers are also indicated.
4. From the above it is clear that the respondents were required to obtain a Type Approval Certificate/ COP from the said Ministry and from no other authority.
5. In the impugned order it has been noted that both the respondents had applied to the said Ministry for issuance of the Type Approval Certificate/COP. Mr J. S. Gujral had written a letter on 07.03.2007 and also sent a reminder on 30.04.2007 whereas Mr M. P. S. Gujral had written to the said agency on 15.01.2007. The said Ministry of Land, Infrastructure and Transport, Tokyo, Japan had only responded to Mr M. P. S. Gujral and no response was given to Mr J. S. Gujral's letter. The response to Mr M. P. S. Gujral's letter was dated 07.02.2007 wherein the said Ministry stated as under:-
―Japan has its own system of law and regulations related to motor vehicles. We, the Ministry of Land, Infrastructure and Transport, judge if motor vehicles comply with all the Japanese technical standards concerning safety, environment, etc. and grant type designation or type approval for those motor vehicles. Please note that not all the Japanese technical regulations harmonize with the ECE regulations. This means that only a part of the Japanese technical regulations harmonize with the ECE regulations. Therefore, the Japanese CUS. A.C. Nos.6/2008 & 9/2008 Page No.4 of 6 government does not issue a certificate which states that a motor vehicle complies with all ECE regulations. For this reason, we regret to inform you that we can't provide you with the documents you requested for.‖
6. In these circumstances, the Tribunal was of the view that since the importers had filed their bills of entry only after applying to the International Accredited Agency and only after the agency had replied that they would not be in a position to issue the certificate as required, insisting on the condition stipulated in the said Import Policy would, therefore, amount to asking the importer to do the impossible.
The Tribunal placed reliance on the maxim -- lex non cogit ad impossibilia which means that the law cannot ask a person to do the impossible. We agree with these observations and views of the Tribunal. As per the Import Policy the importers were required to obtain the Type Approval Certificate/ COP from the international accredited agency of the country of origin of the goods. In this case the cars have been imported from Japan and, therefore, it was only the Ministry of Land, Infrastructure and Transport which could have issued the Type Approval Certificate/ COP. The respondents had applied to the said Ministry for the Type Approval Certificates/ COPs but the Ministry had flatly refused in so many words. In such a situation the respondents could not be expected to submit the Type Approval CUS. A.C. Nos.6/2008 & 9/2008 Page No.5 of 6 Certificate/ COP from the said agency. We are, therefore, not inclined to interfere with the impugned order passed by the Tribunal.
7. Before concluding, we may note that we agree with the learned counsel for the appellant that the reference to the decisions in the case of Altaf Shoes Pvt. Ltd v. CC (Imp.), JCH: 2005 (188) ELT 504 (Tri-Mum) and in the case of M/s Metro Palace Hotel Pvt. Ltd v. Commissioner of Customs decided on 16.01.2006 by the Tribunal, was not necessary. The decisions in those cases were on entirely different grounds and circumstances. It was sufficient for the Tribunal to have arrived at the conclusion that it did on the ground that it was impossible for the respondents to have fulfilled the condition of submitting the Type Approval Certificate from the international accredited agency when the said agency had refused to do so. With these observations the appeals are dismissed.
BADAR DURREZ AHMED, J RAJIV SHAKDHER, J October 17, 2008 SR CUS. A.C. Nos.6/2008 & 9/2008 Page No.6 of 6