TMI Blog2019 (5) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not open to the petitioner to contend that section 125 (1) does not entitle the respondent to order the re-export. Whether the goods in question are prohibited goods or not? - HELD THAT:- It is only those goods which are subjected to any prohibition under the Customs Act or any other law, that are taken to be prohibited goods. It is not the case of the respondents that the goods in question are prohibited for import under the Customs Act - the import of plant growth regulators is not prohibited absolutely. They may actually fall under the category of restricted goods , and the restriction is with regard to registration. Whether the condition regarding registration will make the goods prohibited goods? - HELD THAT:- It is interesting to see that even goods which are prohibited for import under the Customs Act or any other law for the time being in force, will not automatically become prohibited goods within the meaning of Section 2 (33) of the Customs Act, 1962, if such goods are imported after complying with the conditions for their import. In other words, even goods which are prohibited for import will shed the character of being prohibited goods, if they are imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they received orders from some other purchaser. 8. Finding themselves at their wit s ends, the petitioner requested the Principal Commissioner to allow them to redeem the goods for home consumption upon payment of duty. But, the same was also rejected. Therefore, the petitioner is before this Court. 9. The main grounds on which the impugned order is assailed are (1) that a direction for re-export is beyond the purview of Section 125(1) of the Customs Act, 1962 and (2) that so long as the imported goods do not fall under the category of prohibited goods, there cannot be a direction to re-export. 10. The respondents have filed a counter affidavit contending inter alia that the petitioner originally accepted to re-export the goods and paid the fine and hence, they cannot go back on the same; that the goods in question cannot be imported by a person who is not registered and hence, the import by an unregistered person will tantamount to the import of prohibited goods. 11. We have carefully considered the above submissions. 12. It is no doubt true that the petitioner offered to re-export the goods, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions. Plant growth regulators are found under Exim Code No.3808 93 40. The policy with regard to plant growth regulators is indicated as free in column No.3, showing thereby that they are freely importable. But, column No.4 as against plant growth regulators reads as follows: If registered and not prohibited for import under Insecticides Act 1968 and formulations thereof. 17. From the above it is clear that the import of plant growth regulators is not prohibited absolutely. They may actually fall under the category of restricted goods , and the restriction is with regard to registration. 18. In fact, the Supreme Court had an occasion to distinguish between prohibited items and restricted items, in Commissioner of Customs v. M/S. Atul Automations Pvt. Ltd. MANU/SC/0067/2019. Paragraph No.9 of the said decision may be usefully extracted as follows: 9 . Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Om Prakash Bhatia v. Commissioner of Customs, Delhi 2003 (155) E.L.T. 423 (S.C.) , in support of her contention that the non-fulfillment of conditions for import would make the goods prohibited goods. A careful look at the said decision would show that the appellant in the case before the Supreme Court was an exporter, who claimed duty drawback on a consignment which was found to be of lesser quantity than what was claimed to have been exported. It was also found by the authorities that the goods were over invoiced and there was an attempt to claim duty drawback fraudulently. Therefore, the goods were ordered to be confiscated under Section 113 (D). The question before the Supreme Court was whether they were prohibited goods since the export was contrary to restrictions imposed under the Act. The Supreme Court held that if the conditions are not fulfilled the goods may be branded as prohibited goods. 22. The decision in Om Prakash Bhatia was followed by the Supreme Court in Commissioner of Customs, New Delhi v. Brooks International (2009) 10 SCC 396. In fact, the issue that arose in the said case was whether goods whose market value is much less than the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be prohibited under Section 11 of the Customs Act, 1962. 26. Under Section 11 (1) of the Foreign Trade Act, the import or export of goods except in accordance with the provisions of the Act and the Foreign Trade Policy, is prohibited. If goods are imported in contravention, they are liable for confiscation under Section 11 (8) of the Act. But, the confiscated goods can be released under Section 11 (9) of the Foreign Trade Act, upon payment of redemption charges. This Section 11 (9) of the Foreign Trade Act is similar to Section 125 (1) of the Customs Act, 1962. 27. In Brooks International , the Supreme Court held that restriction is one type of prohibition. If restriction is one type of prohibition, then the goods become prohibited goods. Therefore, we cannot find fault with the respondents in treating the requirement of registration as a restriction on the free import and consequently treating the goods, imported without registration, as prohibited goods. 28. Therefore, the Writ Petition is liable to be dismissed and accordingly it is dismissed. However, in the circumstances of the case, there shall be no order as to costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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