Custom, Excise & Service Tax Tribunal
M/S. Cosmo Films Ltd vs Commissioner Of Customs, Airport, ... on 17 September, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. C/633/08 - Mum
(Arising out of Order-in-Appeal No. 56/2008 B dated 10.3.2008 passed by the Commissioner of Customs (Appeals), Mumbai).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Cosmo Films Ltd.
:
Appellants
Versus
Commissioner of Customs, Airport, Mumbai
Respondents
Appearance Shri Anil Balani, Advocate for Appellants Shri N.A. Sayyed, JDR for Respondents CORAM:
Honble Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 31.08.09 Date of Decision : ORDER NO.
Per : Ashok Jindal This appeal is filed by the appellant M/s. Cosmo Films Ltd. against the order of confiscation of goods under Section 111(o), imposition of fine of Rs.1,00,000/- and a penalty of Rs.50,000/- under Section 112 of the Customs Act, 1962 and imposition of interest under Section 28 AB of the Customs Act, 1962.
2. Brief facts of the case are that the appellant furnished a bond for duty free clearance of goods imported by one, Mr. Michael Xavier. As per the terms of the bond, the goods were required to be re-exported within three months and proof of re-export was to be produced. However, no such proof was produced. A show cause notice was issued to the appellant as well as to Mr. Michael Xavier. The appellant contended that Mr. Michael Xavier had returned and taken back the goods with him but no endorsement was obtained from the department by Mr. Michael Xavier. The lower authority confirmed the duty demand, confiscated the goods and imposed redemption fine of such confiscation along with penalty of Rs.50,000/- and asked to pay the interest under Section 28AB of the Customs Act, 1962. Against the order, the appellant preferred an appeal before the lower appellate authority who confirmed the order of the Adjudicating Authority.
3. Aggrieved by the same, the appellant is in appeal before me.
4. Heard both sides and perused the records.
5. Shri. Anil Balani, learned Advocate for the appellant submits that as per the condition of the bond, fines and penalties may be imposed by the Commissioner in lieu of import licence. It is not the case of the Department that the impugned goods are either restricted or prohibited. In fact, the goods are freely importable and there is no requirement of an import licence. Accordingly, the goods cannot be confiscated and fine & penalty in lieu of import licence cannot be imposed. He further submitted that the goods were confiscated on the ground that the import was made without any Import Export Code No. and at the time of import no such Code No. was mentioned by the appellant, so the appellant has contravened the provisions of Customs Act. Accordingly, the goods were confiscated and penalties were imposed but the learned Advocate submits that as per Hand Book of the Procedures issued by the Ministry of Commerce and Industry, Department of Commerce, Govt. of India, there is no such conditions to give IEC No. as in the case of the appellant on import by baggage. Hence, the demand of interest and confiscation of goods and imposition of penalty are against the provisions of law and the same may be set aside. To support his contention he placed reliance on Irfan Abdul Haque vs. CC, Mumbai 2001 (131) ELT 441 (Tri. Mumbai) wherein it was held that Passenger allowed to import goods which are freely importable. Confiscation of goods otherwise freely importable not sustainable. He also placed reliance on Colby International Ltd. vs. CC, New Delhi 2002 (147) ELT 928 (Tri. Del.) wherein it was held that the Appellant neither obtained IEC No. nor they were exempted as per para 4.6 of EXIM Handbook of Procedures. Mere non obtaining of EXIM code does not render the goods liable to confiscation. Confiscation order set aside.
6. On the other hand the learned JDR appearing on behalf of the Revenue submits that the goods were confiscated for contravention of the terms of the bond. He further submitted that the appellant are liable to pay interest and he placed reliance on the decision in the case of CCE, Pune vs. SKF India Ltd. 2009-TIOL-82-SC-CX wherein the Honble Apex Court has held that interest is leviable on delayed or deferred payment of duty for whatever reasons. He further submitted that for imposition of penalty under Customs Law, mens rea is not required.
7. On careful examination of the submissions made by both the parties, I find that the goods were confiscated only on the ground that the importer failed to produce the IEC number at the time of import. The contention of ld. JDR is that the goods were confiscated on the ground that the appellants had violated the conditions of bond as nowhere reflected from the records available before me. The contention of the ld. JDR is rejected. The references placed by the learned Counsel in the case of Colby International Ltd. (supra) is squarely applicable in this case and there was no requirement for IEC No. in the instant case and on that basis the goods cannot be confiscated, redemption fine and penalty are not sustainable.
8. Accordingly, I do not find any merits in the impugned order and the same is set aside. Appeal is allowed with consequential relief, if any.
(Pronounced in Court on ) (Ashok Jindal) Member (Judicial) nsk 4