TMI Blog2014 (12) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent by producing statutory documents issued by the Office of the JDGFT. This aspect of the case requires to be re-considered by the Adjudicating Authority. Tribunal is not justified in holding that no penalty can be imposed after payment of duty and interest as required by the Notification. The Tribunal did not look into the position of law as found in para 7.29 of the Export and Import Policy 1997-2002 and therefore fell into error. In view the documents now produced by the assessee showing that the assessee had discharged the export obligation for the purpose of regularising the bonafide default, the matter requires to be re-considered by the Adjudicating Authority on the issue of confiscation and penalty. Accordingly, we remand the matter back to the Adjudicating Authority. - Matter remanded back - Decided in favour of Revenue. - Civil Miscellaneous Appeal No. 455 of 2008 - - - Dated:- 28-11-2014 - R. Sudhakar And Pushpa Sathyanarayana,JJ. For the Appellant : Mr. Vikram Ramakrishnan For the Respondents : Mr. S. Murugappan - R1 JUDGMENT (Delivered by R. Sudhakar,J.) This Civil Miscellaneous Appeal filed against the order dated 23.03.2007 made in Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/s.Pattu Exports will read as :- Therefore, the goods are to be held liable for confiscation under Section 111(o) of Customs Act, 1962 and the importers are liable to penalty under section 112 of Custom Act, 1962. It is, however, seen that the goods are not available for confiscation and therefore, I refrain from imposing fine. In imposing the penalty, I have taken this factor into consideration. The order portion will also read as:- I, therefore, order that a sum of ₹ 4,25,963/- (Rupees four lakhs twenty five thousand nine hundred and sixty three only) being the duty should be paid along with appropriate interest for failure of discharge of export obligation. I also impose penalty of ₹ 1,00,000/- (Rupees one lakh only) on M/s.Pattu Exports under Section 112 of the Customs Act, 1962. 5. As against the imposition of penalty of ₹ 1.00 lakh under Section 112 of the Customs Act by the Adjudicating Authority, an appeal was filed before the Commissioner (Appeals), who upheld the order of the Adjudicating Authority, which reads as follows: I have carefully gone through the records of the case and the submissions made by the appellant. In the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Section 111(o) and consequent penalty under Section 112(a) of the Customs Act. Aggrieved by the said order of the Tribunal, the Department is before this Court. 7. Learned Standing Counsel appearing for the Department pointed out to para 7.29 of the Export and Import policy, which clearly provides for action under Customs law without prejudice to any action that may be taken at any stage under the Customs Act, 1962. 8. Learned counsel appearing for the assessee submits that the assessee had tried to discharge the export obligation in terms of 7.28 of the Export and Import Policy by surrendering Special Import Licence of a value equivalent to three times the CIF value of imports on prorata basis. In this regard he submitted documents, such as redemption of advance licence letter dated 14.03.2000 and the letter dated 12.4.2000 issued by the Government of India, Ministry of Commerce, Office of Joint Director General of Foreign Trade, Chennai and the redemption sheet dated 12.04.2000. He further submits that in view of the subsequent development, penalty should not be imposed. 9. Heard learned Standing Counsel appearing for the appellant and the learned counsel appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner of Customs or Deputy Commissioner of Customs is produced within 30 days of expiry of period allowed for fulfilment of export obligation or within such extended period as the said Assistant Collector of Customs may allow; (vi) exempt materials shall not be disposed of or utilised in any manner, except for utilisation in discharge of expport obligation, before the export obligation under the said licence has been discharge in full. ....... (emphasis supplied) 11. It is to be noted herein that for regularising the bonafide default, the respondent/importer had to comply with the conditions in terms of para 7.28 of the Export and Import Policy, 1997-2002. 12. Para 7.28 of the Export and Import Policy 1997-2002 reads as follows: 7.28 Regularisation of bonafide default The cases of a bonafide default in fulfillment of export obligation may be regularised by the licensing authority in the manner indicated below: A. Duty Free Licence (i) If the export obligation is fulfilled in terms of quantity but not value, the licence holder shall, for the regularisation, surrender to the licensing authority Special Import Licences of a value equivalent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icences issued as per Export and Import policy 1992-97, shall be governed, for the purpose of regularisation, in accordance by the provisions of that Policy/Procedures. 13. This issue was also raised by the importer at the first instance before the Adjudicating Authority. However, we find that in the order passed by the Adjudicating Authority, a reference is made to para 7.28 of the Export and Import Policy and the Adjudicating Authority held as follows: A careful reading of the above provisions would imply that regularisation is possible only if the default is bonafide. Whether there was a bonafide default or not, it is for the importer to substantiate the same. In this case, apart from stating that the export obligation could not be forwarded due to administrative inconvenience, no other evidence has been let in to substantiate the claim. 14. The subsequent event, namely, the documents now furnished, apparently was not produced before the Original Authority, is in line with the plea taken by the assessee before the Original Authority on the hearing on 25.10.1999, which is reflected in the order of the Adjudicating Authority. Therefore, there is every justification for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port Policy reads as follows: 7.29 Time period for depositing fines, customs duty, etc. The customs duty with interest to be recovered from the licencee on account of regularisation or enforcement of BG/LUT as the case may be, shall be deposited by the licence holder in relevant Head of Account of Customs Revenue i.e. 0.37 - Customs-I Import Duties (i) Revenue duties in prescribed T.R.Challan within 30 days of the demand raised by the licensing/customs authority and documentary evidence shall be produced to this effect to the licencing/customs authority immediately....... The payment of amount of duty, interest and any dues or surrender of Special Import Licence for regularisation shall, however, be without prejudice to any other action that may be taken by the customs authorities at any stage under the Customs Act, 1962. 19. We, therefore, find that the policy itself enables the Customs Authorities to exercise its power for confiscation or for imposing fine and penalty. In this case, the goods are not available for confiscation under Section 111(o) of the Customs Act and hence, no fine was imposed, however penalty was imposed. The findings of the Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent a prohibition. The expression 'any prohibition' in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions 'prohibiting', 'restricting' or 'otherwise controlling', we cannot cut down the amplitude of the word 'any prohibition' in Section 111(d) of the Act. 'Any prohibition' means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From Item (I) 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 nonetheless the prohibition continues. (emphasis supplied) This proposition applies to Section 111(o) of the Customs Act as well. 22. In the case of Sheshank Sea Foods Pvt. Ltd. Karnataka etc. versus Union of India Ors. reported in (1996) 11 SC 755, the Supreme Court held as follows: 7. For the reasons stated above, the Ministry of Law have advised that it may not be possible to take action under Section 111(o) with respect to the conditions of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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