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2014 (8) TMI 696 - HC - CustomsProhibited goods - redemption of confiscated goods - import of Car Radial Tyres - Whether the Tribunal has committed an error of law in accepting and upholding the clearance for home consumption allowed by the Commissioner (Appeal) of goods otherwise prohibited for clearance for home consumption in absence of valid BIS certificate with reference to the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009, read with 2.2 of the Foreign Trade Policy and General Note 2A of the import policy regarding mandatory compliance with regard to BIS certification as per Schedule III to the import policy - Held that:- Definition of the expression 'prohibited goods' covers any goods where the import or export is subject to a prohibition under the Customs Act or any other law for the time being in force. However, the definition does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. Section 125 (1) of the Customs Act confers a discretion upon the Adjudicating Officer to allow an option for the payment of a redemption fine in lieu of confiscation where it is found that the importation or exportation is prohibited under the Customs Act - Commissioner (Appeals) has missed the central aspect of Section 125 of the Customs Act, which is the discretionary element in the exercise of jurisdiction under Section 125 of the Customs Act. Since the Commissioner (Appeals) proceeded to apply a misconceived test under Section 125 of the Customs Act and has failed to consider this aspect, we are of the view that the ends of justice would warrant that the proceedings be restored back to the file of the Commissioner (Appeals). We, accordingly, dispose of the appeal by restoring the proceedings back to the Commissioner (Appeals), who shall decide the appeal afresh after hearing the Assessee and the Department. Since, we are remanding the matter to the file of the Commissioner (Appeals) for a fresh decision on the basis of the view which we have taken, it is not necessary for the Court to answer the question of law as framed - Decided in favour of Revenue.
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