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2023 (2) TMI 491 - CESTAT KOLKATAAbsolute Confiscation - redemption of goods denied on the ground of it being prohibited goods - Mosquito swatter/bat - imported goods are prohibited in nature since the DGFT notification (effect of the notification was, mosquito killer racket under HS code 85167920 and 85167990 in theimport policy was revised from free to prohibited) was issued on 26.04.2021 and the Bill of Lading date was also 26.04.2021 - HELD THAT:- Both the Adjudicating authority and Ld. Commissioner (Appeals) are of the opinion that, prohibited goods cannot be redeemed which is contrary to the decision of the Hon’ble Supreme Court relied upon by the consultant in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT], wherein it was held that Absolute confiscation should be an exception rather than a Rule. Without exploring any other alternative it has been held that goods are liable for confiscation. The case law relied upon by the Ld. Commissioner (Appeals) M/S. Pam Agro Industries [2021 (3) TMI 910 - GUJARAT HIGH COURT], has got no application in the present case. In that case ultra vires of the DGFT Notification restricting and amending the policy was under challenge. Besides the amount of MIP fixed for cashew nuts was in dispute which is not the case here. Hence the case law relied upon by the Ld.Commissioner (Appeals) is completely distinguishable from the present case. In the present case, the goods were ordered for shipment in 19.04.2021 and goods were shipped on 26.04.2021. So it is admitted that the items become prohibited since the declared value was much lower than Rs. 121/- per piece as per the DGFT notification dated: 26.04.2021. In terms of the policy para- 1.05, as transitional arrangement in case of export and import that is permitted freely under FTP is subsequently subjected to any restriction or regulations, such export or import ordinarily be permitted, notwithstanding such restrictions or regulations, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restrictions - Since the order for supply of the goods was not backed by any LC, no benefit of transitional arrangement can be extended. There are force in the submission of the Ld.Consultant that in the case of Har Govind Das K. Joshi Vs. Collector [1987 (1) TMI 107 - SUPREME COURT] the Hon’ble Supreme Court held that absolute confiscation of goods by Collector without question of redemption on payment of fine although having discretion but omitted to consider such a discretion available with him and remanded the matter to Collector for consideration of an exercise of discretion for imposition of Redemption fine. Besides, since the policy was amended when the shipment was in process their mala fide intention cannot be proved without any additional evidence to invoke penal clause under section 112 of the Customs Act 1962. In the meantime the consultant produced documents and photographs stating that, the goods are suffering huge demurrage and partly some imported items stuffed in the container are damaged which were required to be verified maintaining the principles of natural justice. The Appeals filed by the Appellants are allowed by way of remand to the Adjudicating authority for denovo consideration and to decide the case using the discretion in a prospective manner.
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