Custom, Excise & Service Tax Tribunal
Smt. Saranga Agarwal vs Cc, (Seaport-Imports), Chennai on 16 September, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/618/06
(Arising out of Order-in-Original No. 5324/2006 GR-5BC dated 24.07.2006 passed by Commissioner of Customs, (Seaport-Import), Chennai).
For approval and signature
Honble Shri P. KARTHIKEYAN, Member (Technical)
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Smt. Saranga Agarwal : Appellant
Vs.
CC, (Seaport-Imports), Chennai : Respondent
Appearance Shri B. Satish Sundar, Adv., for the appellants Smt. R. Bhagya Devi, SDR., for the respondent CORAM Shri P. KARTHIKEYAN, Member (Technical) Date of hearing : 16.09.08 Date of decision : 16.09.08 Final ORDER No._____________/2008 This appeal is directed against the impugned order by which the Commissioner of Customs confiscated a car imported by the appellant u/s 111(d) of the Customs Act 62 (the Act), ordered its redemption on payment of a fine of Rs. Eight lakhs and imposed a penalty of Rs. Two lakhs u/s 112 on the appellant. The facts of the case are that the appellant had imported a new Hummer H2 brand car by vessel Jakarta Star. The Commissioner found that the import of the car was in violation of conditions prescribed under the relevant Exim Policy . The Import Licensing Notes appended to Chapter 87 ITC (HS) had stipulated that new vehicles should be imported from the country of manufacture and that import of vehicles of value (FOB) US$40,000 or more had to be accompanied by a Type Approval Certificate (TAC) issued by an International Accredited Agency (IAC) of the country of origin. As the vehicle was imported from Thailand and not from the USA and no TAC was produced, the car under import was confiscated under Section 111(d) of the Act and allowed to be redeemed on payment of fine.
2. The Ld. Counsel for the appellant reiterates the grounds taken in the appeal and submits that the Policy Circular No. 26 (RE-2003)/2002-07 dated 09.02.04 referred to in the Import Licensing Note No.7 under Chapter 87 of ITC (HS) did not prescribe any accredited international agency for issuing TAC in the case of cars manufactured in the USA. A copy of the Circular is furnished. It is submitted that in the absence of a mention of the agency that should issue a TAC in the relevant circular, the importer was not required to furnish such a certificate. He relies on Final Order No.1197-1198/08-SM (BR) dated 22.08.08, which had, in a case of similar import held that allegation of violation of the licensing note was not sustainable. The Tribunal also had relied on a similar order in the case of J.S. Gujral Vs. CC, New Delhi reported in 2008 (225) ELT 265 (Tri.-Del.) in passing the above order. As the international accredited agency had declined to issue the required certificate, in the case of J.S. Gujral Vs. CC (supra), it was held that the importer could not be required to fulfill a condition which was impossible for him to fulfill. Penalty for the violation involved in importing the car without the TAC was vacated. It is submitted that the appellant deserved similar relief. The Ld. Counsel also relies on a decision of the Tribunal in Alsa Marine & Harvests Ltd. Vs. CC, Cochin reported in 2007 (216) ELT 405 (Tri.-Chen.), wherein it was held that in deciding violation involved in not fulfilling impossible conditions, the authorities ought to have borne in mind the legal maxim lex non cogit ad impossibilia which meant that the law did not require a person to do the impossible.
3. As regards the car being imported from Thailand and not from the country of manufacture, namely the USA, the Ld. Counsel invites my attention to the Bill of Lading No. PMX(B) 15110/TH 764 dated 11.06.06. As per the said document the impugned vehicle had been consigned by General Motors, Detroit which was being transshipped by vessel Jakarta Star sailing from Thailand, for delivery at Chennai Port. Details of the said Bill of Lading and the container were also furnished in the Bill of Entry filed for clearing the vehicle in question. It is argued that the above document showed that the car had been imported from USA via Thailand. Therefore, the requirement that new vehicles shall be imported from the country of manufacture was met in the instant case. The Commissioner had wrongly found that the impugned vehicle had not been imported from the USA.
4. The Ld. SDR submits that the relevant circular referred to in para 7 under Chapter 87 of ITC (HS) could not have excluded a country like the USA from where new cars were often imported into India. It was uncertain if the circular produced by the appellants had not been modified by incorporating USA and the concerned international accredited agency subsequent to its issue in 2004. It is also submitted that the impugned order contained a categorical finding by the Commissioner that in the instant case, a new car made in USA had not satisfied the condition of import from the country of manufacture. She requests that the matter may be remanded to the Commissioner for a fresh adjudication when all the relevant aspects of the case could be examined with reference to the documents now submitted by the appellant.
5. I have carefully considered the case records and the submissions by both sides. The appellant was penalized and ordered to pay a fine of Rs. Eight lakhs on a finding that the impugned import had taken place in violation of the policy provisions. As regards the objection that the importer had not furnished TAC from the designated agency of the country of manufacture, the USA and the designated agency for the purpose do not figure in the Policy Circular referred to in the licensing note. In the circumstances, the importer could not be required to produce any such certificate when he imports a vehicle from the USA. This was also the view taken by the Tribunal in J.S. Gujral Vs. CC (supra). As regards the second violation found against the appellants that the impugned car had not been imported from the USA, it is seen that the Bill of Lading submitted at the time of import along with the Bill of Entry shows that the subject vehicle had been consigned by General Motors, Detroit and transshipped to Chennai from Thailand. Therefore, the finding of the Commissioner to the contrary cannot be sustained. In the circumstances, the impugned order holding that the import of the car involved violation of the policy provisions is not sustainable. Accordingly, the impugned order is set aside and the appeal allowed with consequential relief.
(Order dictated and pronounced in the open Court) (P. KARTHIKEYAN) MEMBER (T) BB ??
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