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3. M/s Ghare Impex imported consignments in two containers, said to be articles of common use declared to be valued at ₹ 12,62,976/- and ₹ 10,85,952/- in bills of entry no. 6598066/09.12.2021 and no. 6667794/14.12.2021 respectively which, on examination, were found to be largely goods valued at ₹ 32,54,242/- that were not included in the declaration - comprising goods in breach of 'intellectual property rights' valued at ₹ 3,21,916/- and others valued at ₹ 29,32,326/- - and C/85623, 85715-85720/2023 goods valued at ₹ 60,90,347/- that had not been included in the declaration - comprising goods valued at ₹ 8,06,059/- that were in breach of 'intellectual property rights', goods valued at ₹ 22,03,377/- that lacked certification by the Bureau of Indian Standards, 'e- cigarettes' and accessories valued at ₹ 2,95,392/- besides 'nail polish' valued at ₹ 45,594/- - which were either prohibited for import except with approval of designated statutory regulator or prohibited even to be brought into the country. Though some portion of the consignment, marginally even, were in conformity with the declaration, the impugned order makes no reference thereof and the adjudicating authority, for reasons best known to himself and in contrast with the other two consignments, did undertake responsibility for determining duty liability. Besides seeking imposition of penalties on individuals concerned, including Shri Sagar Jalinder Ghare as proprietor of the importing entity, the notice dated 10th June 2022 proposed absolute confiscation, and destruction, of those in breach of prohibitions and confiscation of others under section 111(d), 111(f), 111(l) and 111(m) of Customs Act, 1962 while revising the assessable value upwards for the entire consignments under rule 7 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 after resorting to rule 12 therein for rejection of the declared values for levy of duty of ₹ 10,13,312/- and ₹ 10,00,123/- respectively on goods to be redeemed and for quantification of penalty on the whole.

6. From the submission of Learned Counsel for the appellants and of Learned Authorized Representative, it is common ground that a substantial portion of the four consignments were in excess of declarations in the corresponding bills of entry and, therefore, liable to confiscation under section 111(l) of Customs Act, 1962. It is also common ground that goods prohibited for import, viz., 'e-cigarettes' C/85623, 85715-85720/2023 and those not complying with prescribed standards in the consignments of M/s Ghare Impex and 'cosmetics'/'pharmaceuticals' in the consignments of M/s Creative Sales and M/s Unique Impex that were in breach of the Drugs and Cosmetics Act, 1940 could not be offered for redemption and clearance for home consumption after confiscation under section 111(d) of Customs Act, 1962.

9. However, it is also on record that the respective importers had sought re-export of all those goods which, by law, are subject to prohibition on import. It would appear that one cavil of the importers is that the prohibited and restricted goods, not declared in the corresponding bills of entry, had not been permitted for re-export. Reliance was placed by Learned Counsel on the decision of the Tribunal in Global Enterprises v. Commissioner of Customs (NS-V), Nhava Sheva [2019 (369) ELT 1596 (Tri.-Mumbai)] and in Siddiq Yusuf Merchant v. Commissioner of Customs, Nhava Sheva-I [(2022) 2 Centax 204 (Tri.-Bom)] insofar these are concerned. The ostensible importers, as well as the alleged beneficiary importers, claimed to have nothing to do with the import of e-cigarettes. By placing reliance on the decision of the Tribunal in Access World Wide Cargo v.

16. There is no doubt that goods, which, by law, are impeded by prohibition from being brought into India, are liable to confiscation under Customs Act, 1962 and it is improbable that these may be so regularized by such confiscation as to be permitted to be cleared for home consumption; the only options are absolute confiscation or, at the instance of owner, to be re-exported. The import of 'e-cigarettes' and of 'goods non-compliant with quality standards', as well those covered by Drugs and Cosmetics Act, 1940, are in this sphere. There is a specific plea for re-export on the claim that these appear to have been shipped in ignorance and even in the absence of any agreement with the supplier for such shipment. In re Global Enterprises, it has been held that '6. As the imported goods, though required to be, are not compliant with the standards, they fail to overcome the bar of prohibition at the threshold. Hence the question of duty liability, differential or otherwise, will not arise. This is in conformity with the decision of the Hon'ble Supreme Court in re Sewpujanrai Indrasanarai Ltd. that requirement to C/85623, 85715-85720/2023 discharge duty liability will have to be established before it can be demanded. However, failure to comply with the norms prescribed by Bureau of Indian Standards would render the goods liable to confiscation. Such liability to confiscation does not necessarily have to be consummated by confiscation under Section 111 of Customs Act, 1962. There is a dangerous consequence to such confiscation. If the option of redemption is not offered, or even exercised, possession of confiscated goods vests with the Central Government which will have to bear the consequence of such possession with attendant cost to the exchequer. On the other hand, if the option of redemption is to be linked to re-export, it has been held that such non- financial conditions cannot be appended for release of goods. Therefore, while upholding the liability of the goods to confiscation, we set aside the confiscation. Consequently, the option to redeem becomes infructuous. We concur with the lower authorities that the goods, being prohibited for import, be re-exported.