Custom, Excise & Service Tax Tribunal
Commissioner Of Customs vs M/S Nu Horizons Electronics Asia Pvt. ... on 1 April, 2011
IN THE ,CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, FKCCI COMPLEX, K.G. ROAD,
BANGALORE 56009.
DATE OF HEARING : 1/4/2011
DATE OF DECISION : 1/4/2011
Customs Appeal No. 133 of 2006
[Arising out of Order-in-Appeal No. 20/2008 (H-II) (D) CUS dated 31.10.2008, passed by the Commissioner (Appeals-II) of Customs, Central Excise & Service Tax, Hyderabad)
For approval and signature:
Honble Shri P. Karthikeyan, Member (Technical)
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ? Yes
3. Whether Their Lordships wish to see the fair copy of the Order? Seen
4. Whether Order is to be circulated to the Departmental authorities? Yes
Commissioner of Customs, Appellant
Hyderabad.
Vs.
M/s Nu Horizons Electronics Asia Pvt. Ltd. Respondent
Present for the Appellant : Shri Harish Kumar, JDR Present for the Respondent : Shri Govindaraj, Advocate CORAM : Honble Shri P. Karthikeyan, Member (Technical) ORDER No..Dated 1/4/2011 PER : P. KARTHIKEYAN
This appeal is filed by the Revenue. The order of the Commissioner (Appeals) sustaining penalty of Rs. 2000/- under Section 117 of the Customs Act, 1962 is sought to be modified. The respondent had imported goods of commercial nature without obtaining requisite Certificate of Importer-Exporter Code (IEC). The goods imported were therefore liable for confiscation under Section 111(d) of the Customs Act, 1962 (the Act) and the importer liable for penalty under Section 112 of the Act. The original authority wrongly imposed penalty under Section 117 of the Act. Reliance is placed on Para 2.12 of the Foreign Trade Policy 2004-2009 read with Para 2.8. of the Hand Book of Procedures Vol. I, where it was clearly mentioned that No export or import shall be made by any person without an Importer-Exporter Code (IEC) number unless specifically exempted. Therefore the impugned export was contrary to the legal provisions and in contravention of prohibition.
2. The learned Counsel appearing for the respondent submits that the import was in possession of Certificate of IEC at the time of import. He submitted that this position was intimated to the Commissioner (Appeals), but he had not accepted the same. He produced a copy of the IEC Number 0704016354 dated 11.2.2009 issued to the importer. The Certificate of IEC carries Date of Issue as 25.11.2004.
3. The learned JDR submits that the impugned order was sought to be modified on the basis that the respondent did not possess a Certificate of IEC at the time of import and the goods imported were liable for confiscation under Section 111 (d) and the importer for imposition of penalty under Section 112 of the Act. Now that the importer has produced a Certificate of IEC which was apparently available with the importer at the time of import, the penal liabilities canvassed in the appeal may not exist against the goods and the importer.
4. I have considered the rival submissions and facts of the case. Since the Certificate of IEC carries the date of issue as 25.11.2004 and the import had taken place on 16.5.2008, the impugned goods cannot be held to have been imported contravening any prohibition attracting Section 111 (d) of the Act. In the circumstances, the appeal filed by the Revenue lacks merit and the same is rejected.
(Pronounced and dictated in the open court) (P. Karthikeyan) Member (Technical) /vc/