Custom, Excise & Service Tax Tribunal
Shri Shyam Singh Yadav vs New Delhi(Icd Tkd)(Import) on 12 June, 2020
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH-COURT NO. II
Custom Appeal No. 52410 of 2018-SM
(Arising out of Order-in-Appeal No. CC(A)CUS/D-I/Import/239/2017 dated
21.6.2017 passed by the Commissioner of Customs (Appeals), New Customs
House, New Delhi)
Shri Shyam Singh Yadav Appellant
R/o C-190, Sector-44, Gautam Budh Nagar,
U.P.-201301.
Versus
Commissioner of Customs (Import) Respondent
New Customs House New Delhi.
Appearance Shri Akshay Anand, Advocate and - for the appellant Ms. Archana Sharma, Advocate Shri Y. Singh, Authorised Representative - for the respondent CORAM: HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 04/02/2020 Date of Decision: 12.06.2020 Final Order No. 50692/2020 Anil Choudhary:
The issue in this appeal is whether original authorization from DGFT for import of goods being cartridges etc. vide Bill of Entry No. 8071705 dated 22.1.2015, under License No. 0550002276 dated 1 June 2011 (revalidated up to 31 January, 2015) was required and submission of the same in original to the Custom authorities for clearance is sine qua non, for getting clearance.
2. The appellant Shri Shyam Singh Yadav is a sportsman (shot)
- a shooter of international repute and won several trophies. The 2 C/52410/18 appellant is a renowned shooter as per notification from Ministry of Youth Affairs and Sports, Government of India. Under the policy, certificate was issued by 'National Rifle Association of India' on the basis of score and position in the National Shooting Champion Competitions. The appellant has won Draunacharya Award, who have coached Mr. R. V. Rathore (Olympic medal winner), is President of U.P. Rifle Association and is presently a sitting Member of Parliament, Lok Sabha from Jaunpur Constituency of U.P.
3. The appellant was granted 'Advance import license' by Joint Director General of Foreign Trade, Ministry of Commerce and Industry, Govt. of India, Kanpur, being License No. 0550002276. The said license was issued for the import of two items i.e. (1) .30- 06 Rifle with Spare Barrels of .308 and .223 bore (2) Big Bore Rifle cartridges of .30-06, .308, 0.223 bores (15000 Nos.). The appellant had imported item no. (1) vide Bill of Entry No. 2233074 dated 25.5.2013 and later item no. (2) vide Bill of Entry No. 8071705 dated 22.1.2015. The Bill of Entry was assessed on the first check basis and goods examined 100% on 31.1.2015. Subsequently at the request of the importer, the goods were allowed to be stored under Section 49 of the Customs Act, 1962. A query dated 26.2.2015 was also raised and issued to importer in the EDI system, to show the hard copy of the documents. Subsequently, vide letter dated 26.5.2016, the appellant submitted a copy of FIR dated 17.5.2016, wherein it was inter alia mentioned that the original License No. 0550002276 dated 1.6.2011, issued by DGFT (CLA) ITO, Delhi was lost from appellants home in Noida. 3
C/52410/18
4. The appellant further submitted a letter dated 24.11.2016, inter alia, that at the time of import, import license was available and valid when the goods landed at the Airport. Bill of Entry with License No. 0550002276 dated 1.6.2011, was duly filed on 22.1.2015, with Import License number, and confirmed that original license was duly available with them when the shipment landed and license expired on 31.1.2015. The appellant further states that the DGFT clearly specified vide their File No. 05/30/08/141/AM12 letter no. 1223441 dated 6.9.2016, that this license cannot be renewed after 30.1.2015, which clearly establishes that his lost import license cannot be misused. The appellant wrote a letter to Commissioner of Customs, Import requesting to inform him regarding the imports done by him in the past, to which Deputy Commissioner of Customs Group III, IV and VI vide its letter dated 23.6.2016 informed the 'utility report' in respect of License No. 0550002276 dated 23.3.2013 and informed that only one Bill of Entry No. 2233074 dated 25.5.2013 has been assessed/cleared utilizing above mentioned license as per EDI system. The said communication to the appellant clearly shows that the said import license was utilized by the appellant for the clearance of item no. (1) (Air rifle with two spare barrels) only as per EDI system. Also from the said utility report it was pertinent that item no. (2) cartridges mentioned on the import license has not been imported by the appellant.
5. The appellant - Shri Shyam Singh Yadav, having IEC No. 010000053, filed the Bill of Entry No. 8071705 dated 22.1.2015 for clearance of goods declared as "REM27842 R308W1 STD MUNITION 4 C/52410/18 308 WIN 150GRMPTD SP CORELOKT CARTRIDGES LIC.0550002276 dt. 1.6.2011 Revalid up to 31.1.2015 (Qty. 4000 Nos.) REM27828 R30065 STD MUNITION 30-06SPRINGF 180GRM PTD SP CARTRIDGES LIC.0550002276 dt. 1.6.2011 Revalid up to 31.1.2015 (Qty. 3000 Nos.) and FED223A .223 REM 55GRM POWER-SHOK SOFT POINT 20/200 CARTRIDGES LIC. 0550002276 dt. 1.6.2011 Revalid up to 31.1.2015 (Qty. 8000 Nos.)' (hereinafter referred to as "the goods) through their authorized representative M/s SMS Clearing & Forwarding, Customs Broker. The goods were classified under CTH 93062100. The goods contained in one package were imported under MAWB No. 02086698566 dated 8.1.2015, Invoice No. SAJ/2014/657 dated 26.8.2014 from M/s KEIHBERG GMBH INDUSTRIES TRASSE. 4, 56581, KURTSCHEID DUETSCHLAND, GERMANY. The assessable value of the goods declared in the Bill of Entry was Rs. 10,19,042.53.
6. It is submitted that the appellant was having a valid Arms License at the time of filing of Bill of Entry for the goods and the same has been confirmed by the office of Additional Commissioner of Customs (Import), which was confirmed in reply to the application filed under RTI Act.
7. It is submitted that it is evident from the Arms License that only one Rifle .30-06 with Spare barrels of .308 and .223 has been endorsed, but there is no endorsement of subject consignment of cartridges, which has been confiscated absolutely vide order-in- original dated 7 February, 2017 along with imposition of penalty of Rs. 1,10,000/- under Section 112(A) of the Customs Act. The said 5 C/52410/18 order for confiscation was passed for want of original import license issued by DGFT, which was reported lost by the appellant (for which FIR have been lodged on 17 May 2016).
8. The appellant, being aggrieved preferred appeal before the learned Commissioner (Appeals) inter alia urging that the import license were issued by DGFT to the appellant for the purpose of import of big bore rifle with additional barrel(s) and 15000 number of ammunition/cartridges, which fact have been ignored by the adjudicating authority. The appellant had provided copies of the said import license to the adjudicating authority along with the utilization certificate issued by the Principal Commissioner of Customs, which was not considered. The said utilization certificate dated 23 June, 2016 clearly states that only one Bill of Entry No. 2233074 dated 25 May, 2013 have been assessed and cleared utilizing the said license, as per the EDI system. No other import by the appellant, is reflected in the EDI system of the Customs. The appellant had stated that he has not imported any other consignment under the said import license, anywhere in India. That arms and ammunition being restricted items, the adjudicating authority failed to appreciate the fact that for import of arms and ammunition, valid arms license (issued by the competent authority) is required. In case any ammunition is imported or would have been imported by the appellant, the same would have been also endorsed on the arms license. Thus, the goods under import ought to have been released on furnishing an indemnity bond. The confiscation of the goods was not at all called for under the facts 6 C/52410/18 and circumstances. Further, no case is made out for imposition of penalty under Section 112(a) of the Act.
9. The learned Commissioner (Appeals) have recorded the following observations:
(a) The appellant have filed the Bill of Entry dated 22.1.2015 for import of cartridges of different bore on the strength of import license which was valid up to 31 January, 2015. Cartridges is classifiable under CTH 93062100 is restricted items as per Foreign Trade Policy wherein 2.08 of FTP 2015-2020 read as follows:
" Any goods/service, the export or import of which is „Restricted‟ may be exported or imported only in accordance with an Authorization/Permission or in accordance with the procedure prescribed in a Notification/Public Notice issued in this regard."
(b) It is further observed that the appellant had proper import license issued by DGFT authorizing to import rifle with spare barrel(s) of .308 & .223, besides other usual condition of import license, along with big bore ammunition (.30-06, .308 & .223) total quantity 15000 numbers. The said import license specifically prescribes for presentation at the time of importation, and its endorsement by the Customs authorities. The said license was revalidated up to 31 January 2015 and thereafter expired. DGFT vide their letter dated 26.8.2016 had rejected the request of the appellant for further revalidation and/or issue of duplicate license. As per the DGFT guidelines, arms license is required to be produced along with the import license at the time of import and the same is required to be endorsed by the Customs department whenever arms and ammunition is released.
(c) It is further observed that the appellant failed to produce the original import license for clearance of the 7 C/52410/18 cartridges, as the same was reported lost. It is further observing that the submission of original license issued by the DGFT before the Custom authorities was essential for clearance so as to ensure satisfaction of the Custom authorities to arrive at a conclusion of non- utilization of the said import license, at any other port of import got the balance goods, for which the authorization was issued. Although, appellant have submitted photo copies of License, forwarding letter dated 22 March, 2013 from FTDO, New Delhi, the DGFT license No. 0550002276/6/14/00 Meeting No. 137 from File No. 05/30/008/00141/AM-12/Case No./0137 dated 14 May, 2011, with the item list, License Amendment Sheets dated 22 March, 2013, 22 January, 2014 and 7 August, 2014. It is further observed in the impugned order that the quantity mentioned in the license is the limiting factor and only up to that quantity, import can be made by the appellant. As the endorsement is required to be made on the original license only and in absence of which the endorsement could not be made by the Custom officials, the order in original of absolute confiscation was upheld rejecting the appeal.
10. Being aggrieved, the appellant is further in appeal before this Tribunal.
11. The learned Counsel for the appellant urges that it is evident from the original Arms License (which was produced at the time of hearing for perusal of the Tribunal) that only one rifle .30-06 with spare barrels of .308 and .223 have been endorsed. But there is no endorsement of the consignment of cartridges under dispute, for which Bill of Entry was filed on 22 January, 2015 during the validity of the import license issued by DGFT, which expired on 31 January, 2015. It is further urged that arms and ammunition cannot be 8 C/52410/18 cleared by the Customs without valid Arms License as per Arms Act, 1959. From the perusal of the original Arms License produced at the time of hearing, this Tribunal has found that the consignment under dispute has not been entered. It is further urged that import of restricted item-arms and ammunition by renowned shooters is freely permitted, on the recommendation of the National Rifle Association of India, after issue of Notification No. 95 dated 9 February, 2012 by the appropriate Government. The National Rifle Association had issued requisite certificate for grant of total exemption from Custom duty for import of the rifle with additional barrels plus cartridges. The learned Counsel further urges that it is evident from the utilization certificate issued by the Principal Commissioner of Customs, that the appellant is entitled to clear the cartridges imported under Bill of Entry filed on 22 January 2015. Learned Counsel further urges that in the interest of justice and in view of the bona fide of the appellant, the consignment of cartridges may be ordered to be released to the appellant on acceptance of indemnity bond.
12. Learned Counsel in the course of the hearing, also produced the badge of the appellant as coach at Beijing Olympic Games, 2008, certificate of Lakshman Pursakar dated 14 December 2001 from UP Government, the badge of Common wealth Games, 2010 as technical official, coach badge of shooting competition in USA, 2008, badge as technical official as South East Association Federation Games at Islamabad, 2009 etc. etc. Accordingly, learned Counsel prays for allowing the appeal setting aside the 9 C/52410/18 impugned order and with direction to the Custom department to release the goods on acceptance of indemnity bond.
13. Learned Authorized Representative for Revenue relied on the impugned order.
14. Having considered the rival contentions, I find that production of the import license issued by DGFT was necessary for clearance of the goods, being cartridges etc. filed under Bill of Entry No. 8071705 dated 22 January 2015. However, in view of the status of the appellant, being renowned shot/sportsmen and a coach of international repute, winner of Draunacharya Award from the Government of India, there is no reason to disbelieve the appellant that he has not imported any other consignments under the said import license, which has finally expired on 31.1.2015. Admittedly, the Bill of Entry was filed on 22.1.2015 when the import license was valid, satisfying the condition of import for 'restrictive goods'. Further, I find that the Principal Commissioner have issued utilization certificate dated 23 June 2016, which clearly states that the appellant have only imported one consignment earlier on 25 May, 2013 (Rifle with spare barrel), and hence is legally entitled to import the goods under the present bill of entry under dispute. Further non-import of cartridges, more than that permitted under the 'Import License', is also corroborated from the original 'Arms License', produced at the time of hearing. I find that the cartridges imported under present bill of entry dated 22.1.2015, is within the quantity permitted under the Arms License as well as the import license issued by DGFT, which is not disputed. In the facts and 10 C/52410/18 circumstances, I hold that the order of confiscation of the consignment under Bill of Entry No. 8071705 dated 22.1.2015 is uncalled for and accordingly, is set aside along with the penalty.
15. In the facts and circumstances, and in the interest of justice, the warehouse charges or demurrage if any, above Rs. 25,000/- are also waived. The appeal is allowed with consequential benefits and the impugned order is set aside. The Custom Department is directed to release the goods under Bill of Entry 8071705 dated 22.1.2015 forthwith to the appellant within a period of one month from the date of production or receipt of this order. The appellant is directed to file appropriate indemnity bond before the Custom authorities.
(Pronounced in Court on 12.06.2020).
(Anil Choudhary) Member (Judicial) RM