Home Case Index All Cases Customs Customs + AT Customs - 2022 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 1179 - AT - CustomsMisdeclaration of imported goods - MS Plates in various thickness and various sizes (stock lot) - classified under CTH 720852390 or not - impugned goods were not covered by MTC - restricted goods vide Notification No.63/2008 dated 21.11.2008 as per Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, or not - HELD THAT:- The Public Notice no. 92/2009 itself envisages the situation wherein the MTC would not have been produced and directs that assessment should be made accordingly. It do not state that the proceedings leading to confiscation be initiated. Further Commissioner who has issued this public notice, directing that all the goods for which MTC is not produced “be considered as Secondary / Defective / Seconds only and assessed accordingly.”, has in the impugned order held the goods to be of prime quality. Having done so Commissioner could not have held any contravention in non production of MTC, which even as per Public Notice is not a mandatory requirement, but only prescribed as an aid for assessment of goods. Admittedly the impugned goods are classifiable as per ITC (HS) Code under the heading 7208 52 90 and the declared CIF value is US $ 425 per Tonne and hence as per this licensing note are freely importable. In the case of Sheikh Omer referred to by the learned authorized representative Hon’ble Apex Court has clearly and unambiguously stated “"Any prohibition" means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues.” Licensing Note 3 provides for exceptions and the situations in which these goods when imported are freely importable and not restricted. Commissioner has himself held that the impugned goods are “prime” and have cif value of US $ 425 per Tonne. With that finding on record the order holding goods as restricted as per Notification No 63/2008 cannot be sustained. The impugned order is completely a non speaking order, passed without consideration of any submission and the law on subject - Appeal allowed - decided in favor of appellant.
|