TMI Blog2010 (2) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. 3 This appeal was admitted to consider the following substantial questions of law by an order dated 13th July, 2005: ( a) Whether on the facts and circumstances of the case, the Tribunal was right in law in not holding that the violation of the condition of the Notification No.34/ (RE98)/ 19972002 dated 10.12.1998 as amended by Notification No. 38(RE98)/ 19972002 dated 22.01.1999 in turn rendered the impugned goods prohibited for importation and liable for confiscation under Section 111(d) of the Customs Act, 1962 ? (b) Whether on the facts and circumstances of the case, the Tribunal was right in law in setting aside the OrderinOriginal dated 11.03.1999? The Facts: 4 The RespondentM/ s Viraj Impex Limited imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he import of Secondary/ Defective H.R. Coil below the floor price of US$232 PMT CIF. It was also informed that the identical goods had been imported by them earlier from South Africa @ US$ 165 PMT, which were assessed by in Group since the Bill of Lading was dated 04.012.1998 i.e. prior to the issuance of notification No.34/98 dated 10.12.1998 and their contracts were on DA basis (i.e. documents on acceptance basis), as such, the Respondent was not required to open a Letter of Credit. The Respondent had already entered into a contract with their overseas suppliers and it could not be cancelled because the same would have lead to damages and claims from their supplier. The requirement set out in paragraph No.1.5 of the ExportImport Policy 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents did not find favour with the Commissioner of Customs (Import), Mumbai. In the result, an order of confiscation was passed by the Commissioner of Customs (Import), Mumbai confiscating the goods and an option was given to the Respondent to redeem the goods under Section 125 of the Customs Act, 1962 on payment of fine of ₹ 1.10 Crores. 10 Being aggrieved by the aforesaid order passed by the Commissioner, the Respondent preferred the appeal before the Appellate Tribunal. 11 The Tribunal after hearing both the parties, recorded a categorical finding that there was no malafides on the part of Respondent and that the Respondent had actually entered into contract in good faith at the time when the import of subject goods was perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that in the teeth of notifications holding the field, the imported goods were totally prohibited and were liable for confiscation under Section 111(d) of the Customs Act, 1962. 14 Per contra, Mr.Baya, the learned counsel for the Respondent submits that the submission made by the Revenue cannot hold water in view of the fact that the finding of fact was recorded by the Commissioner in the OrderinOriginal that the contract was entered into before the restrictive changes in the policy were made and that the Respondent/Importer had attempted to cancel that contract but the supplier did not accept cancellation thereof and went to the extent of threatening the Respondent with damages. He further submits that prior to the present consignment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this finding given by the Commissioner, in OrderinOriginal, the Tribunal could not have reached to the contrary conclusion that the goods imported were liable to be confiscated under Section 111(d) of the Customs Act, 1962 because of the restrictive import policy vide notification dated 10.12.1998. 17 Since the findings recorded by the Commissioner in orderinoriginal were contradictory, the Respondent was better advised to challenge the same before the Tribunal. The Tribunal finding contradiction in the order was pleased to set aside the contradictory part of the order and recorded a positive finding that if the contract was genuine and bonafide the goods could not have been subjected to the confiscation and redemption fine. 18 The Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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