TMI Blog2010 (12) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... t come within the definition of `imported goods' for the purpose of the exemption notification - . In the present case, it is the finding of the Bombay High Court that the respondent-firm had imported diamonds of foreign origin without a valid licence and that finding has become final. Therefore, we agree with the learned senior counsel Sri R.P. Bhatt on this aspect. The Tribunal, in our view, erred in holding that the situation was covered by the case of Associated Cements Company (2001 -TMI - 78729 - Supreme court of India) decided by this Court - 8235 OF 2003 - - - Dated:- 9-12-2010 - D.K. JAIN, H.L. DATTU, JJ. JUDGMENT H.L. Dattu, J. 1) This appeal is by the Revenue against the Order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Zonal Branch at Mumbai [hereinafter referred to as `Tribunal'] in Appeal No.C/138/03 Mum dated 23.06.2003. By the impugned order, the Tribunal has allowed the appeal filed by the respondent and has set aside the original order passed by the adjudicating authority, wherein it had directed the respondent to pay a sum of ₹ 2,20,50,125/- (Rupees Two Crores Twenty Lakhs Fifty Thousand One Hundred Twenty F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.247/76-Cus dated 02.08.1976. This request was turned down by the department and the respondent was informed that the seized diamonds would be released only after payment of duty in the light of the order (original) dated 03.12.1992. Respondent thereafter preferred a Writ Petition No.1976 of 2000 before the Bombay High Court. The said Writ Petition was dismissed by the High Court, wherein it was specifically observed "that the petitioner imported diamonds of foreign origin without a valid licence." This order was questioned before this Court in S.L.P.(C) No.1495 of 2000. This Court, by its order dated 06.09.2002, while dismissing the Special Leave Petition, directed the Additional Collector of Customs (Preventive), Mumbai or other appropriate Assessing Officer to decide the amount of duty payable under the Customs Act in respect of seized goods. The Commissioner of Customs vide order in Original No.CCP/KPM/ADJN/M P/27/2002, quantified the duty payable by the respondent for an amount of ₹ 2,20,50,125/- (Rupees Two Crores Twenty Lakhs Fifty Thousand One Hundred and Twenty Five only) before redemption of the confiscated diamonds. Being aggrieved by the same, the respondent here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the menace of smuggling, the authorities are enabled to detect, conduct search and seizure, and if necessary, confiscate such smuggled goods, within the territory of India. 6) We may now briefly notice the scheme of the Act. The expression `dutiable goods', `duty', `import', `imported goods', `importer' and `smuggling' are defined in the following manner :- `Dutiable Goods' means any goods which are chargeable to duty and on which duty has not been paid. `Duty' means a duty of Customs and leviable under this Act. `Import', with its grammatical variations and cognate expressions, bring into India from a place outside India. `Imported goods' means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption. `Importer' means in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. `Smuggling', in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the Act. 7) Dutiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought within Indian Custom Waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force, shall be liable for confiscation. Section 112 of the Act provides for penalties for improper importation of goods. 9) The Central Government, in exercise of its power under Section 25(1) of the Act, has issued Notification No.247-Cus. dated 02-08- 1976 exempting certain articles from payment of duty. For better understanding the lis between the parties, the notification is extracted. It reads as under :- Exemption to raw pearls, rubies, emeralds and sapphires, rough diamonds, etc.- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts each of the articles specified in column (2) of the Table annexed hereto and falling within Chapter 71 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) when imported into India from the payment of so much of the duty which is specified in the said First Schedule, as is in excess of the rate of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 2(25) `imported goods' has been defined to mean "...any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption." It is necessary that the above definition is read along with Section 11, Section 111 and Section 112 of the Act, which provide for detection of illegally imported goods and prevention of the disposal thereof, confiscation of the goods and conveyances and imposition of penalties respectively. Under Section 111(d) of the Act, any goods which are imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable for confiscation. The goods which have been seized in this case cannot be imported into India without a licence under the Import Control Act and there is, therefore, a prohibition in law for the import of goods except in compliance with the Import Control Act. It is not the case of the respondent-firm that the goods were imported with a valid licence and, therefore any import of goods of which importation is prohibited by law, cannot be valid import under the Act. Goods so imported cannot therefore, be treated to be lawfully "i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notifications to accord the benefit meant for imported goods on smuggled goods. 15) The Tribunal has relied on the decision of this Court in the case of Associated Cement Companies v. Commissioner of Customs, [2001 (128) ELT 21 (SC)] to extend the benefit of the exemption notification on the respondent-firm, despite the fact that the goods that were in question were not smuggled goods. In the case of Associated Cement Companies Ltd. (supra), the question that fell for consideration was whether customs duty was leviable on technical material supplied in the form of drawings, manuals and computer disc. etc. The further question was that if customs duty was leviable, how it was to be valued. While answering the issue, this Court has observed that Section 12 of the Act provides that the duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act. When the Customs Tariff Act itself provides that the import of drawings and designs under Heading No.49.06 is `free', it must follow that these drawings and designs, though goods were not chargeable to duty. In our considered view, this decision would not assist the respondent herein. In the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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