Customs, Excise and Gold Tribunal - Delhi
Shri J.S. Gujral And Shri M.P.S. Gujral vs Commissioner Of Customs on 26 December, 2007
Equivalent citations: 2008(127)ECC184, 2008(153)ECR184(TRI.-DELHI), 2008(225)ELT265(TRI-DEL)
ORDER
Jyoti Balasundaram, Vice President
1. In both these cases, the Commissioner of Customs has, by two separate adjudication orders, confiscated the Toyota Lexus LS 460, imported by both the appellants herein from Japan, on the ground that Type Approval Certificate TS COP of the International accredited agency from the country of origin, was not furnished by the importers, as per the requirement of para 7 of licensing note, according to which, the said certificate was required in the case of import of new vehicle having FOB value of USD 40,000 or more and engine capacity exceeding 3000 cc for petrol run vehicle by an individual, with option to redeem on payment of fine and also imposed penalties under the provisions of Section 112 of the Customs Act, 1962 on the importers. In the case of import by Shri J.S. Gujral, fine is Rs. 4,00,000/- and penalty is Rs. 2,00,000/-, while fine and penalty imposed on Shri Mohinder pal Singh Gujral is Rs. 4,50,000/- and Rs. 1,00,000/-respectively.
2. I have heard both the sides and perused the records. I find that both the importers had applied to the International Accredited Agency, namely, Ministry of Land, Infrastructure and Transport, Tokyo, Japan, which was the specified International Accredited Agency as seen from at S.No. 313 of Policy Circular No. 26 (RE-2003)/2002-2007 dated 9.2.04 issued in pursuance of Department of Commerce Notification No. 34 dated 9.2.2004 for issue of requisite certificate. A letter by Shri J.S. Gujral was written on 7.3.07 and reminder sent on 30.4.07 and Shri M.P.S. Gujral wrote to the Accredited Agency on 15.1.07. The Ministry of Land, Infrastructure and Transport, Tokyo, Japan replied to Shri M.P.S. Gujral on 7.2.07 that:
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 government doesn't 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.
As we are not familiar with the Indian customs clearance system, it's difficult for us to give you advice regarding this matter. We are very sorry that we can't meet your request.
3. In the case of Shri J.S. Gujral, there was no response from the agency. The import of Shri J.S. Gujral was on 17.5.07 while import of Shri M.P.S. Gujral was on 23.3.07. Both importers had filed bill 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 certificate (replied to Shri M.P.S. Gujral). In this situation, the question is only as to whether the importer can be asked to do the impossible. It is well settled maxim that law cannot ask the person to do impossible - 'lex non cogit ad impossibilia'.
3.1 Learned Counsel has drawn my attention to the decisions of this Tribunal in the case of Althaf Shoes Pvt. Ltd. v. CC (Imp), JCH, Nhava Sheva which has been followed in the case of Metro Palace Hotel Pvt. Ltd. v. CC (Imports) Mumbai II, Final Order No. A/294/IV/SMC/WZB/2006 dated 16.1.06, both relating to import of vehicles. In the case of Althaf Shoes Pvt. Ltd. (supra) it has been held that liability to produce the Homologation Certificate in terms of ITC Public Notice 4 (RE-2001) 1997-2002 dated 31.3.01 provided for import of new car, shall be upon the dealer and not upon the importer. In the case of M/s. Metro Palace Hotel Pvt. Ltd. (supra), the same view has been reiterated and that the benefit has been extended even in the absence of homologation certificate.
4. In the ratio of the above orders and noting that the importer has been asked to fulfill the condition which is impossible for him to fulfill, namely, procuring Type Approval Certificate from the International Accredited Agency which has declined to issue the certificate for the reasons stated in its reply on 7.2.07, I hold that the confiscation and penalty are not sustainable and hence, set aside the impugned orders and allow the appeals with consequential relief, if any, due to the appellants, in accordance with the law.
(Dictated in the open Court)