Customs, Excise and Gold Tribunal - Tamil Nadu
Commr. Of Cus. vs Shipping And Trading Associates (P) ... on 4 October, 2000
Equivalent citations: 2001(73)ECC104, 2001(128)ELT250(TRI-CHENNAI)
ORDER S.S. Sekhon, Member (T)
1. This appeal has been filed by the Revenue against an order of Commissioner, Visakhapatnam who had in connection with an import of 'barge named (renamed) Diamond of Vizag with floating cranes' found that in the Bill of Entry the imp arter had not declared the Importer Exporter Code Number required under S2ction 7 of the Foreign Trade (Development & Regulation) Act, 1992 read wit a para 48 of the EXIM Policy 1992-97 (as amended) as required by Rule 12 of the Foreign Trade Regulation Rules, 1993 but he had accepted a subsequent import licence issued by the Ministry of Surface Transport under Section 407 of the Merchant Shipping Act read with para 78 of Hand Book Procedure Vol I for the subject import to be valid. Even though the Commissioner had found thit there was a violation, in as much as EXIM code of the importer was not mentioned in the Bill of Entry, he considered the instant importation being for sole use of the importers to fulfil certain contractual obligations involving no fore gn exchange and therefore took a lenient view of the omission and did not impose a penalty under Section 112 of the Customs Act, 1962 or confiscate the goods under Section 111(d) as proposed in the Show Cause Notice.
2. The Revenue found this decision of the Commissioner to be not legal and proper in as much as
(a) that the licence should not have been accepted which is subsequent production of import permission from the Ministry of Surface Transport of Govt. of India to have covered this import. Since there was no such valid permission with the importers at the time of import, therefore, it should have been held that the goods are liable for confiscation.
(b) the violation of Section 7 of F.T. (D&R) Act, 1992 in not mentioning the EXIM code number of the importer in the Bill of Entry should have been viewed seriously and not leniently and a suitable penalty should have been imposed by the Commissioner and therefore they have come in appeal in this case.
3. We have heard ld. DR Shri S. Sudarsitn for Revenue, who has drawn our attention to Section 7 of the Foreign Trade (Development & Regulation) Act, 1992 and also Section ll(u) and Section 1M (d) of the Customs 1962 and has submitted that non-declaration of EXIM code should be deemed to be a prohibition for import of the subject goods and liability for confiscation should be mandatorxly imposed under Section 112(a) of the Customs Act, 1962 in view the words used in Section 111 and 112. He reiterates the grounds made in appeal.
4. Ld. Advocate Shri Sunder Rajan appearing for the importer respondent submitted that Section 7 of the Foreign Trade (D&R) Act 1992 specifies that person who imports goods should obtain the EXIM code and the restriction is "on a person" importing goods without obtaining code and Section (7) does not relate to prohibition/imported goods, which is specified in Section 3 of this Act. He drew our attention also to Secticn 3(2) of this Act to submit that Central Govt. is empowered to issue an order to prohibit the import/export of the goods and no such order has been cited by the Revenue for prohibiting the import of subject goods. Since para 78 relied upon by Revenue of the Policy provides that such imports can be made with the licence to be issued, with the concurrence of the Ministry of Surface Transport, Govt. of India and in the present case they got an import licence and the recommendation of the concerned Ministry as per the Policy for the import o.1' subject goods and this permission, as per copies submitted in the paper book is for the subject import, therefore the imported goods in the present case are not prohibited by any order issued under Section 3(2) of the Foreign Trade (Development & Regulation) Act, 1992. He further submitted that Section 111 of the Customs Act speaks only about prohibition imposed on goods and since there was no prohibition imposed on the goods imported by this client since they have complied with the policy para and similarly Section 11 itself imposes conditions and prohibitions regarding goods and not the persons. Therefore if at all the EXIM code number is not mentioned, it will not be deemed to be a prohibition to be read under Section 111(d) read with Section ll(u) of the Customs Act, 1962. He submitted that Section 112(a) deals with only penalties to be imposed, only if the goods are liable for confiscation and in this case since the goods are not liable for confiscation as per his submissions, there is no cause for invocation of Section 112(a) of the Act in the facts and circumstances of this case.
5. He relied on the CEGAT decision rendered in Laser Sight (India) Pvt. Ltd v. CCE Neiv Delhi reported in 1998 (28) RLT 569 which is specifically on the subject of import export code number not being mentioned by the importer on the goods wherein it was held that confiscation on mere non-mention of import export code number was also not justified since it was only a procedural requirement. He also relied upon the case law of CC Mumbai v. B. Arun Kumar & Co. reported in 1999 (106) E.L.T. 141 wherein it was held that technical violations should be viewed leniently as has been reported held by the Commissioner in this case.
6. We have considered the rival submissions and find as follows :-
(a) relying upon the case law submitted by the ld. Advocate, there is no ground left for us to come to a conclusion that goods in this case were liable for confiscation or any penalty was required to be imposed for the mere fact of non-mention and non-possession of the export import code number and also that licence and permission from Ministry of Surface Transport, Govt. of India obtained subsequently to the imports would render goods liable for confiscation. We find that certain letters issued before information by the Ministry of Surface Transport were produced but they were not found to be adequate and thereafter corrective steps were taken. If the Ministry has not issued letters in the proper proforma, the importer cannot be found fault with.
(b) We appreciate the arguments made by ld. Advocate, which has lot of force that if the intention was to indict the imports made by persons nor having an import export code number, then it should have been brought about in very clear terms under the Foreign Trade (Development & Regulation) Act, 1992 as well as under Customs Act.
7. In view of our findings, we do not find any reason to interfere with the Commissioner's order. We, therefore, confirm the same and reject the appeal of Revenue.