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2019 (11) TMI 1360 - AT - Customs100% EOU - import of prohibited goods - Department entertained the view that the impugned goods are prohibited as the appellant has not produced the said certificate of legally mined minerals - whether the impugned goods have been legally mined and whether the appellants have produced sufficient documents to prove the same? - principles of natural justice. HELD THAT:- The show-cause notice was issued to the appellant on 26/07/2019 proposing to confiscate the goods on the ground that they are not legally mined minerals and are prohibited goods. In the show-cause notice, 30 days time has been given as observed in para 24 of the show-cause notice to file the reply. But the Commissioner passed the impugned order on the next day itself i.e. 27/07/2019 without affording an opportunity of filing the reply to the show-cause notice by the appellant. It appears that the Commissioner has no regard for the principles of natural justice. The opportunity of proper hearing has to be accorded to the appellant against whom the order of absolute confiscate has been passed on the next day of the issue of show-cause notice and that too without taking proper reply to the show-cause notice and without affording proper opportunity of hearing to the appellant. The manner and the speed with which the impugned order has been passed by the Commissioner without affording adequate opportunity to the appellant to file the reply to the show-cause notice is in complete violation of the principles of natural justice. Once the appellant has produced the legally mined minerals certificate along with other documents which have also been filed along with the appeal before the Tribunal but the same have not been considered at all and the instructions issued subsequent to the filing of the shipping bills has been considered for passing of the impugned order absolutely confiscating the impugned goods - further, during the same period, identical goods were allowed to be exported under 16 shipping bills without any objection by the same Customs authorities after a proper examination and verification and the impugned goods have been absolutely confiscated on the basis of instructions issued by the Tamil Nadu Government as well as Trade Facility circular issued by the Customs House , Cochin and that too after the filing the shipping bills. Absolute confiscation - HELD THAT:- As per the policy prevalent during the relevant time, the natural garnet was freely exportable and importable without any restriction - further, the DGFT has issued a Notification No.26/2015-2020 dt. 21/08/2018 canalising the export of beach sand minerals through M/s. Indian Rare Earths Ltd. and the appellants are now legally not authorized to export the said goods. Once the goods are found to be not prohibited, then it is mandatory for the Customs authorities to release the same on payment of redemption fine if there is a violation of any conditions prescribed by any other law in force - Whereas in the present case, according to my considered view, appellant has not violated the provisions of Customs Act and has purchased the legally mined Garnet from N/s. Transworld Garnet India (P) Ltd. The impugned order is not sustainable in law as the same has been passed without following the principles of natural justice and without considering the documents produced by the appellant justifying the legally mined minerals - the impugned order is set aside and the Customs authorities, Cochin are directed to release the impugned goods to the appellant because the same cannot be exported by the appellant in view of the DGFT Notification No.26/2015-2020 dt. 21/08/2018 - appeal allowed.
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