Tax Management India.Com

Home Page

Home List
← Previous Next →

2018 (12) TMI 446

Provisional release of the seized goods - Section 110A of the Customs Act, 1962 - Prohibited goods or not? - Clear ownership - actual importers (identified by DRI during investigation) did not have IEC Code No. - Held that:- It is to be noted that the investigations in the present case have already been concluded by the DRI, as evidenced by issue of show cause notice dated 03.09.2018 in which the seized goods have been proposed for confiscation under Section 111 of the Customs Act, 1962. - The findings of the lower authority that the goods were prohibited goods is set aside - also the warehousing of the goods has already been allowed; hence the seized goods will not incur demurrage. Further, the show cause notice has already been issued. - In these circumstances, the lower authority is directed to complete the adjudication of the case within a period of two months from the date of receipt of this order, failing which he should pass order under Section 110A ibid for provisional release of the goods as permissible under law - appeal disposed off. - Appeal Nos. C/77296 & 77297/2018 - FO/77037-77038/2018 - Dated:- 6-12-2018 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER And SHRI V. P .....

X X X X X X X

Full Text of the Document

X X X X X X X

d that the goods imported were prohibited goods since they were imported by persons who did not hold a valid IEC Code no. granted under Section 7 of the Foreign Trade (Development and Regulation) Act, 1992. Under Section 2(33) of the Customs Act, the Commissioner has concluded that the goods were prohibited. b) He refuted the findings of the ld. Commissioner with the submission that the definition of the term Importer as per Section 2(26) of the Customs Act, includes any owner, beneficial owner or any person holding himself out to be an importer. As per this definition of the term Importer , the Customs Authorities should release the seized goods in favour of Shri Manoj Kumar Gupta, since the DRI has alleged that he is the real importer who has financed these operations. c) Ld. Advocate further submitted that the goods are required to be given provisional release in terms of Section 110A of the Customs Act. He cited the decision of the Tribunal in respect of certain other imports made by M/s. Opel Exports and M/s. R.K.Exports vide Final Order No.SO/75678-75679/2018 dated 11.06.2018. In similar circumstances, the Tribunal has ordered that the goods cannot be considered as prohibited .....

X X X X X X X

Full Text of the Document

X X X X X X X

5. Heard both sides and perused the appeal records. 6. The appellants are aggrieved by the orders passed by the Commissioner, Customs, Kolkata rejecting the request of the appellants for provisional release of the seized goods under Section 110A of the Customs Act, 1962. Such rejection has been made by the lower authority by taking the view that the imported goods are to be considered as prohibited goods, since the actual importers (identified by DRI during investigation) did not have IEC Code No. Further, he has opined that the goods imported do not have any clear ownership, as such he has declined the request for provisional release. 7. Ld. Advocate for the appellant has referred to the order passed by the Tribunal in FO/75678-75679/2018 dated 11.06.2018 to support his argument that the imported goods cannot be considered as prohibited goods and hence, merit provisional release. The Tribunal has relied on the decision of the Hon ble Bombay High Court in the case of Hamid Fahim Ansari vs. Commr. Of Customs (Import), Nhava Sheva [2009(241) ELT 168 (Bom.), the relevant portion of the order is reproduced below: 5. In other words, imports have been done in the name of the petitioner b .....

X X X X X X X

Full Text of the Document

X X X X X X X

the said section means bringing into India of goods as defined under Section 2 (e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also. Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an importer, who enjoys the facility of I. E Code imports certain goods in the normal course of business of the strength of a contract entered by such importer with either a consumer or a trader who eventually sells the imported goods to consumers. We do not understand what can be the legal objection for such a transaction especially where the import of such goods is otherwise not prohibited by law. At any rate, if the respondents have any tenable legal objection on that count, the respondents must pass an appropriate order indicating the legal basis on which the action is proposed and also the nature of the action proposed for such perceived violation of law on the part of the respondents after giving a reasonable opportunity to the importer to meet the case against .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →