Custom, Excise & Service Tax Tribunal
Roter Precision Instruments Pvt Ltd vs Commissioner, Customs (Export)-New ... on 4 October, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. IV
CUSTOMS APPEAL No. 50544 of 2022
(Arising out of Order in Appeal No. CC (A) Cus./ DI/Export/NCH/3917/2021-22
dated 23.12.2021 passed by Commissioner (Appeals), New Custom House,
New Delhi)
M/s. Roter Precision Instruments Pvt. Ltd. ...Appellant
Versus
Commissioner of Customs, ....Respondent
New Custom House, New Delhi APPEARANCE:
Ms. Prabjyoti K. Chadha, Advocate for the appellant Mr. Ishwar Charan, Authorized Representative for the Respondent CORAM : HON'BLE DR.RACHNA GUPTA, MEMBER (JUDICIAL) Date of Hearing: 15/09/2022 Date of Decision: 04/10/2022 FINAL ORDER No. 50948/2022 DR.RACHNA GUPTA Present appeal has been filed to assail the order in appeal No. 3917/2021-22 dated 15.12.2021 vide which the impugned subject goods were ordered to be confiscated, however, with the option of paying redemption fine. The order demanding interest and imposing penalty was also announced by Commissioner (Appeals).
2. The facts in brief are as follows:-
The appellants imported a Professional Survey Equipment with re-chargeable Battery, Tripod Mount etc. valued at 2 C/50544 /2022 Rs.9,67,095/- involving duty of Rs.266918/- on 22.08.2019 under the provisions of Notification No.04/2018 - Cus. dated 18.01.2018. The said goods were imported under Carnet No.CA191214 valid till 25.07.2020 for the purpose of demonstration of Professional Equipments. However, as per the condition of the said Notification the said imported goods were to be exported out of India within two months of its importation. The appellant could not re-export the same within the aforesaid time. Hence vide letter dated 13.11.2019 requested permission for extension of Carnet period for another two months from their initial due date of export i.e. 21.10.2019. The said permission was granted extending a period of further two months for re-export of the said equipment, however, on the payment of penalty of Rs.5,000/-. Though the said penalty was paid but appellant still failed to re-export the impugned goods within the said extended period, hence vide letter dated 18.12.2019 permission for further extension of the aforesaid Carnet was requested.
3. At this stage, competent authority formed an opinion that the appellant had contravened the provisions of aforesaid Notification No.04/2018 and thus have rendered themselves liable to pay the custom duty of Rs.2,66,918/- alongwith the interest also have rendered the goods liable for confiscation alongwith penalty. An opportunity to Show Cause against the said opinion was given to the appellant who vide letter dated 26.05.2020 requested to not to be served with any Show Cause Notice and had also opted to not to appear in person. Accordingly, the Original adjudicating authority 3 C/50544 /2022 vide order No.28/2020 dated 29.05.2020 while observing delay in re-export as the violation of the Notification No.4/2018, accordingly, ordered the goods in question to be confiscated under section 125 of Customs Act, 1962. However, with the option to get it redeemed after payment of fine of Rs.2.5 Lakhs alongwith order of payment of the aforesaid amount of applicable duty, interest. Penalty of Rs. 27,000/- was imposed under section 112 of the Customs Act. Commissioner (Appeals) has upheld those findings except for reducing the redemption fine to Rs.50,000/-. Still being aggrieved the appellant is before this Tribunal.
4. I have heard Ms. Prabjyoti K. Chadha, ld. Counsel for the appellant and Shri Ishwar Charan, Authorised Representative for the Department.
5. Ld. Counsel for the appellant has submitted that the goods were imported under a Carnet for temporary admission of goods under Notification No.04/2018. The said Notification had no provision for confiscation. Otherwise also the said carnet was guaranteed by Federation of Indian Chamber of Commerce and Industry in India (FICCI) as per the provisions of Customs Convention on ATA Carnet for temporary admission of goods done at Brussels on 8th June, 1961. It is further submitted that the order demanding duty is liable to be set aside for the reason that the appellant has already exported the goods out of India on 20 th July, 2020 vide Shipping Bill No. 3943344. It is further submitted that Ministry of Law and Justice, New Delhi vide an Ordinance had 4 C/50544 /2022 provided relaxation for the provisions fixing time limits, the order confiscating the goods which were exported due to some delay is not sustainable in the light of the said relaxation which was purely given during the period when the world was struggling with Covid 19 Crisis. Ld. Counsel further mentioned that the amount of duty redemption fine and penalty as per order of original adjudicating authority was deposited by the appellant on 16.08.2019. It is submitted that the Commissioner (Appeals) has miserably failed to take notice of the same. The confirmation of the order of confiscation and duty demand is therefore liable to be set aside. Above all, there was no intent of the appellant to evade the duty. The delay in re-export was purely due to unprecedented circumstances as that of Covid. Imposition of fine though to a reduced extent is also therefore highly unsustainable. Finally it is submitted that the Carnet under which the goods were imported was valid till 25.07.2020 prior which the goods were already re- exported. The order is accordingly liable to be set aside. The appeal is prayed to be allowed.
6. While rebutting these submissions ld. D.R. has mentioned that the goods were imported under a Carnet guaranteed by FICCI in terms of the Notification No.04/2018. Conditions therein are utmost clear that the goods had to be re-exported in the stipulated time. Though the period could have been extended by the competent authority but in case of failure to re-export the goods within the period specified or extended as the case may be, FICCI and the importer were jointly and severally liable to pay the duties 5 C/50544 /2022 of Customs leviable on the goods as on date of import alongwith the applicable interest. It is submitted that in view of the said conditions, there is no infirmity in the order of Commissioner (Appeals). It is further impressed upon that once a benefit of a notification has been taken by the assessee, the terms and conditions therein have to be strictly complied with else the assessee has to face the consequences. For this reason also the impugned appeal deserves to be dismissed.
7. Having heard the rival contentions, I observe and hold as follows:-
The goods in question were imported for a temporary purpose under a Carnet and applicable Notification with the clear condition of being re-exported within 2 months. Apparently the said period of two months was allowed to be extended by the competent authority. I observe that the goods still could not be re- exported within the extended period that another request dated 18.12.2019 was made by the appellant for further extension of time. The appellant had quoted 'Covid Pandemic' as a reason for the impugned delay due to which the training with reference to imported survey model CMS-V-500 with accessories could not be completed by 20.03.2020 whereafter was the nationwide lockdown w.e.f. 24.03.2020.
8. I observe that Hon'ble Apex Court in Suo motu Writ Petition (C) No.3 of 2020 vide its order dated January 10, 2022 has appreciated about the difficulties that might be faced by 6 C/50544 /2022 litigants in not only filing petitions etc. but also in all other quasi- proceedings within the period of limitation prescribed under the general/ special laws due to the outbreak of Covid 19 pandemic. In accordance thereof the period with effect from March, 2019 till February, 2022 has been ordered in phases, to be excluded in computing the periods prescribed under requisite Legislation.
9. There also has been an Ordinance passed by Ministry of Law and Justice on 31.03.2020 to be called as Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020 Section 3 thereof extends the time limit for completion or compliance of any required action to 30th day of June, 2020 or to such other date after June, 2020 as the Central Government may, by notification, specify in this behalf, provided the time limit for said action, under the specified Act, falls during the period from the 20th day of March, 2020, to the 29th June, 2020.
10. In the present case the extended time limit to re-export the goods expired on 21.12.2019. Though request for further extension was made on 18.12.2019 but the same was not accepted. Hence, the goods were required to be re-exported on 21.12.2019. By this date there was no COVID situation in India. The order of Supreme Court and the Ordinance of Ministry of Law and Justice give relief of time extension for such actions, under specified Act, which were to be completed or complied with after 20th March, 2020. Thus, it is clear that the Notification No.04/2018 has been violated.
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C/50544 /2022
11. I observe that Adjudicating Authority below has confirmed the confiscation of the impugned goods under section 111 (o) of the Customs Act, 1962. The section reads as follows:-
"(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;"
12. The very perusal makes it clear that the violation of the Notification No.04/2018 by the appellant gets covered under said provision. Hence, I do not find any infirmity in the order directing confiscation of these goods giving an option of paying the redemption fine (redemption fine already deposited and the impugned goods stands already re-exported). Commissioner (Appeals) is observed to have been meticulous while reducing the redemption fine from Rs.2.5 Lakhs to Rs.50,000/- on the ground of no malafide on the part of appellant. Hence, the said order is held to be reasonable and justified.
13. The period as was extended by the competent authority to re-import the impugned goods had apparently expired in December. Though the request was moved for further extension but the same was not considered. It becomes clear when seen in the light of Notification No.04/2014 that the condition of said Notification gets violated and the goods on the date of the expiry of stipulated/ extended period were nothing but the imported goods. 8
C/50544 /2022 Hence, I do not find any infirmity in the order when the duty alongwith interest and penalty has been called for from the appellant (the same stands already deposited).
14. In view of entire above discussion, the order of Commissioner (Appeals) is hereby upheld. Since he has reduced the redemption fine from Rs.2.5 Lakhs to Rs.50,000/- and it is Rs.2.5 Lakhs which stands deposited by the appellant that the appellant shall be entitled for the consequential relief. However, the appeal in hand stands dismissed.
[Pronounced in the open Court on 04.10.2022] (DR.RACHNA GUPTA) MEMBER (JUDICIAL) Anita