Customs, Excise and Gold Tribunal - Mumbai
Miles India Ltd. vs Collector Of Customs on 20 August, 1990
Equivalent citations: 1991ECR430(TRI.-MUMBAI), 1991(52)ELT577(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. This appeal is directed against the order-in-appeal bearing No. 4151/87/BGM dt. 17-9-1987, modifying the order-in-original No. S/10-138/86J dated 7-8-1986 to the extent of redemption fine for the purpose of re-shipment, from Rs. sixty thousand to Rs. thirty thousand.
2. The appellants imported a consignment and sought its clearance under a licence issued on 17-8-1984 and the licence expired on 28-2-1986. It was found that the shipment took place on 5-3-1986 and as such the shipment being subsequent to the expiry of the licence, the import was objected to by the Department. The appellants filed the B/E for home consumption on 30-5-1986. However, on 3-6-1986, they received a message from the suppliers stating that the goods despatched were defective and that the same may be re-shipped. Accordingly, a prayer for re-shipment was made. In the adjudication proceedings, the prayer of re-shipment was allowed on payment of fine of Rs. 60,000/-. In appeal before the Collector (Appeals) the Collector (Appeals) reduced the redemption fine to Rs. 30,000/- and confirmed the rest of the order of the adjudicating authority.
3. Shri W. Christian, the learned advocate appearing for the appellants submitted that though admittedly, the shipment was after the expiry of the validity period of the licence, the appellants have made all the efforts to see that the shipment was made within the validity period. The Collector (Appeals) has in his order made a reference that the appellants had made sincere efforts to import the goods within the validity period of the licence. He submitted that thus there was no mala fide intention on the part of the appellants and when they had received the message from the suppliers that the goods were defective as per the specifications, they sought for permission to reship the goods. Therefore, imposition of redemption fine is not called for. He submitted that as per the law, the goods may be 'liable' to confiscation and that it is not incumbent to the Department to necessarily order confiscation or imposition of penalty. For this purpose, he referred to the decision of the CEGAT in the case of Lucknow Paper Distributors and others reported in 1988 (35) ELT 222 (Tri.), where the majority view is that merely because the provision exists for imposition of penalty, it is not mandatory for the Department to impose such penalty. He submitted that though the decision relating to the provisions of the Central Excise Act, the ratio would squarely stand attracted to the case under the Customs Act. He then placed reliance on the decision of this Bench in M/s. Peejay Maya Exports reported in 1988 (14) ECR 87 (Cegat WRB), where a view is taken that in the absence of any finding that the appellants were concerned in the illegal import, penalty and fine could be waived. He submitted that taking into consideration the ratio of these decisions and when the bona fides have been accepted even by the Department and when the goods are not brought for home consumption but have been sought for re-export, there is no question of ordering confiscation and imposition of redemption fine. He, therefore, submitted that the order passed by the adjudicating authority should be set aside.
4. Heard Shri Arya. He however, supported the order passed by the authorities below and submitted that here is the case where the import is made after the validity of the licence and as such the import is illegal by virtue of Sec. 111(d) of the Customs Act, and when the import is unauthorised the order of confiscation is absolutely necessary. At the risk of the appellants, re-export has been permitted and that the Collector (Appeals) has even taken a liberal view in reducing the redemption fine to 50%. In his submission, when the statutory provisions are clear, their appears no justifiable ground to interfere with the order passed.
5. Considering the submissions made and perusing the records, it appears that the import as was made, was unauthorised inasmuch as the shipment took place after the validity period. In that case, the legality of the import cannot be accepted and even the appellants have not pleaded that the import is legal. The Ld. Advocate submitted that as soon as the goods were found to be defective the suppliers requested them to reship the same and thus they also desired to re-ship the goods. Therefore, there was no intention on their part to clandestinely import the goods into India in violation of the law. This Bench has, in its order, in the case of M/s. Peejay Maya Exports (supra) taken a view that the imposition of penalty and fine is not mandatory and can be waived. In that case the appellants had filed the B/E for home consumption and had sought clearance thereof under OGL, which was objected by the Department. The law does provide for confiscation of the goods if they have unauthorisedly imported. However, it has to be considered in the light of the facts and circumstances of each individual case and merely because the import is considered as unauthorised, confiscation and imposition of fine is not an unavoidable exigency. Here the Department themselves are satisfied about the bona fides and therefore considering the guidelines laid down in the decision cited by the learned advocate, I hold that it is not necessary to order confiscation and imposition of the redemption fine. Under the circumstances, the order of confiscation and imposition of redemption fine for the purpose of re-export is set aside. It is reported that the goods have already been re-exported and hence there is no question of their being brought to India. It is, however, made it clear that it is only on account of the prayer for re-export, that I am inclined to take the view that the order of confiscation and imposition of fine is unnecessary.
The appeal is allowed.