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TMI Blog2013 (1) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured in USA but was invoiced by a dealer in Dubai and shipped from Thailand. The import policy in relation to cars stipulated various conditions. One condition, as per para 2(11) (a) (iv) of the import policy to Chapter 87 of the ITC HS Policy, was that the vehicle should have been imported from the country of manufacture. This condition was not complied in this case. 3. Another condition, as per para 2 (II) (c), was that the vehicle should have a "homologation certificate". This condition was also not met by the importer. 4. Yet another condition was that the importer was required to produce "Type Approval certificate/Certificate of Conformity of Production (COP)". This condition was also not complied with. 5. Since the car was imported in contravention of the conditions specified in the Import Policy of the Government of India, as indicated above, the car was confiscated under section 111(d) of the Customs Act 1962 and allowed to be redeemed on payment of a redemption fine of Rs. 4,00,000/-. Further a penalty of Rs. 2,00,000/- has been imposed under section 112 of the Customs Act on the importer. Aggrieved by the order the appellant has filed this appeal. 6. The submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in Customs Appeal Nos. 412-413 of 2007-SM dated 26-12-2007 in J. S. Gujral and Others Vs. CC = (2008-TIOL-2636-CESTAT-DEL). This decision was challenged by the Revenue before the Hon. High Court of Delhi and the High Court upheld the view of the Tribunal in the matter of Type Approval Certificate as may be seen para 6 of the decision of the Hon. High Court in CC Vs. J. S. Gujral and Anr. Cus. A.C.46/2008 dated 15-10-2008. The said paragraph is reproduced below: "In these circumstances, The Tribunal was of the view that since the importers had filed their bills of entry only after applying to the International Accredited Agency and only after the agency had replied that they would not be in a position to issue the certificate as required, insisting on the condition stipulated in the said Import Policy would, therefore, amount to asking the importer to do the impossible. The Tribunal placed reliance on the maxim - lex non cogit ad impossibilia which means that the law cannot ask a person to do the impossible. We agree with these observations and views of the Tribunal. As per the Import Policy the importers were required to obtain the Type Approval Certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) have a speedometer indicating the speed in Kilometers per hour; (ii) have right hand steering, and controls (applicable on vehicles other than two and three wheelers); (iii) have photometry of the headlamps to suit "keep left" traffic; and (iv) be imported from the country of manufacture. b. In addition to the conditions specified in (a) above, the new vehicle shall conform to the provisions of the Motor Vehicles Act, 1988 and the rules made thereunder, as applicable, on the date of import. c. Whoever being an importer or dealer in motor vehicles who imports or offers to import a new vehicle into India shall, (i) at the time of importation, have valid certificate of compliance as per the provisions of rule 126 of Central Motor Vehicle Rules (CMVR), 1989, for the vehicle model being imported, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the goods should have been imported from the country of manufacture. It is not for the Tribunal to guess the reason behind the condition and order what would be sufficient compliance with the policy. The Import Policy is formulated having regard to various trade considerations of the country and international obligations. It is not for Tribunal to look into the merits and demerits of the import policy because the Tribunal does not have before it all the facts and constraints that result in a policy. We are also not able to agree with the contention that since the policy has been amended in December 2008, the amended position should be applicable for imports made in 2007. This argument if accepted will also lead to considerable difficulties to the Government in the matter of implementation of import policies from time to time which changes depending on various factors. 16. In the matter of Certificate of COP there is some merit in the argument of the Ld. AR that there was one way of complying with the policy by not importing the car of USA make at all. But this matter is already decided by the Delhi High Court to be a case of lex non cogit ad impossibilia. So we respectful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading dtd. 14.04.07 showing shipment from Jackson Ville, Florida, USA stands placed on record showing the shipment of the vehicles to UAE. Copy of DEC (form of bill of entry), dtd. 15.05.07 issued by Dubai, Customs showing import of vehicles into UAE for re-export stands placed on record. Further, Dubai, Customs have issued a certificate dtd. 15.06.07 showing export of the said vehicles to Thailand. Copy of bill of lading dtd. 16.06.07 showing vehicles on board for shipment from UAE to Thailand stand placed on record. Car fax history report is also placed. Copies of bills of lading issued by M/s Dollar Auto, Dubai, UAE are also placed on record. 24. The above evidences showed that vehicles were originally shipped from USA and reached India via Dubai and Thailand. As such it can be safely concluded that the export of the vehicles originated from 'country of manufacture' and the same have undergone transhipment. The policy terms do not ban such transhipment. The time gap between the original shipment of the vehicles from USA, i.e., on 14.04.07 and the ultimate landing of the vehicles in India in November, 2007 is not on the higher side and it is seen from the documents placed on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that in PRC meeting No.5/07 held on 07,08.07, the said condition of the Import Policy was clarified and shipment from country other than the country of manufacture was permitted provided documentary evidences in the form of bill of lading etc. are available so that the link of the country of manufacture to the place of shipment is established. In the present case, I find that there is sufficient documentary evidence available in all three cases in the shape of form of bill of ladings, import export certificate from Dubai, Customs, car fax, customs documents at Thailand showing movement of the goods originating from USA upto the landing of vehicles in India. If that be so, it cannot be held, in my views, that the vehicles does not stand imported from country of manufacture. If that be so, confiscation of the same and imposition of penalty on the appellants is not called for. 27. Apart from above, I also note that the policy was relaxed in the subsequent year. Though I agree that the policy provisions as available on the date of importation of the vehicles are required to be taken into consideration for deciding the dispute but the said relaxation reflects upon the legislative int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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