Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (I), Mumbai vs Aquarius Ltd on 18 May, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No. C/307/03 (Arising out of Order-in-Appeal No. 34/2003 MCH dated 27.1.2003 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Honble Mr. S.S. Kang, Vice President and Honble Mr. P.R. Chandrasekharan, Member (Technical) ======================================================
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?
====================================================== Commissioner of Customs (I), Mumbai Appellant Vs. Aquarius Ltd. Respondent Appearance: Shri Manish Mohan, Authorised Representative (SDR), for appellant None for respondent CORAM: Honble Mr. S.S. Kang, Vice President and Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of Hearing: 18.5.2011 Date of Decision: 18.5.2011 ORDER NO Per: S.S. Kang
Heard the learned SDR. None appeared on behalf of the respondents in spite of notice.
2. The Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) held that the goods in question are restricted goods and the present respondents at the time of import had not produced any special import licence and now at the appellate stage the respondents are prepared to get the SIL debited and hence the confiscation of the goods is not maintainable.
3. The contention of the Revenue is that the goods were imported in the year 1998 and the goods were restricted goods which requires special import licence. At the time of import, no licence was produced. The adjudicating authority confiscated the goods and enhanced the value of the goods. On the appeal filed by the present respondents, the Commissioner (Appeals) remanded the mater to the adjudicating authority in respect of valuation. The adjudicating authority held against the present respondents. On appeal filed by the present respondents in the present impugned order, the Commissioner (Appeals) condoned the condition of special import licence that now the respondents are prepared to get the SIL debited.
4. It is also submitted by the Revenue that the Commissioner (Appeals) in the first remand order upheld the classification of the goods under different headings and remanded the matter in respect of valuation only. In spite of this, in the present impugned order the Commissioner (Appeals) reclassified the goods under Chapter 95 of the Tariff which covers toys whereas the goods are tooth brush, wet nap, toilet seat etc. The contention is that the impugned order in respect of classification is also not sustainable.
5. We find that the Honble Bombay High Court in the case of Sophisticated Marbles & Granite Industries vs. UOI reported in 2004 (166) ELT 318 (Bom.), in a similar set of situation where the imported goods requires special import licence and subsequent to the import, the importer wants to produce the licence, held that the importers who are importing goods without licence and seek to validate the import by obtaining subsequent licence or licences cannot be allowed to take advantage of their own wrong. In view of this decision of the Honble High Court, we find that the impugned order whereby the Commissioner (Appeals) condoned the condition of licence, is not sustainable. In respect of classification of goods, we find that the Commissioner (Appeals) reclassified the goods whereas that issue was already settled by the earlier order-in-appeal vide which the matter was remanded in respect of valuation only. In view of the above, the impugned order is set aside and the order passed by the adjudicating authority is restored. The appeal is allowed.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) (S.S. Kang) Vice President tvu 1 4