TMI Blog2019 (11) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... in place. The Department also contends that the appellants have not submitted any concrete proof that the conditions of Para 1.5 of the FTP have been satisfied so as to be eligible for the imports despite the prohibitions. The appellants have submitted a few disconnected documents which look like sale deeds, contracts, agreements etc., however as pointed out by the Learned Commissioner AR, the documents are full of inadequacies making the authenticity of the documents subject to doubt. It is also not coming forth as to which of these documents pertain to the impugned imports. Moreover, we do not find any conclusive agreements indicating that an irrevocable letter of credit has been opened or has been enforced at the time of shipment. The appellant s argument fails on both counts and we find that they have imported the impugned goods in violation of the prohibition imposed by DGFT Notification cited supra and thus, they have rendered the impugned goods liable for confiscation and rendered themselves liable for penalty. We allow the appeals of Revenue and impose redemption fine of ₹ 70 Lakhs on M/s Parison Foods Pvt. Ltd. and ₹ 50 Lakhs on M/s Parison Agrotech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. Revenue are in appeal, vide appeals C/446/2007 and C/447/2007, against non-imposition of fine in lieu of confiscation. 2. The learned counsel for appellants submits that the imports were effected when the stay granted by Hon ble High Court of Kerala was in operation; the Notification was not in force; further the High Court has specifically permitted the appellants to discharge cargo; as long as the stay was in operation it cannot be deemed the appellants have imported in contravention of any prohibition; penalty should be used for deterrence but not for retribution. He submits that the appellants have entered in to agreements with buyers prior to the coming in force of the prohibition. The goods were originally procured by the sister concerns like M/s Parisons Roller Flour Mills Pvt Ltd, M/s Parisons Exports Inc and M/s Parisons Estates and Industries Pvt Ltd. Before sale of goods to the appellants, the sale of goods was an issue between their sister concerns and M/s Intercontinental Oils Fats Ltd and M/s Adani Wilmar Trading Pvt Ltd. All the contacts being in transition period before the prohibition came in to effect; the appellants cannot be accused of contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 111(d), 125, 112(a) under Customs Act, 1962, are only suspended/withheld temporarily till the core issue in the Writ is decided on merit. He submits that stay of operation of any Notification does not wipe out the very existence such statutory Notification; Hon ble Supreme Court in the case of Shree Chamundi Mopeds Ltd Vs Church of South India Trust Association, Madras 1992 (3) S.C.C.1, held that While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position was it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. 3.1. He further submits that Hon ble Apex Court, in the case of Indian Council for Enviro-Legal Action V UOI (2011)8 SCC 161, summarised (in para 223) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectricity Board (1997) 5 SCC 772, Hon ble Apex Court observed that It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim order of the court. Any other view would result in the act or order of the court prejudicing a party [Board in this case] for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. Learned Commissioner, AR, submits that when the Interim Stay was in operation, no SCNs or OIOs have been issued to the Appellant referring the Port Prohibition on the impugned import; the due action has been initiated only after the final disposal of the subject Writ Petition; therefore, the claim of the Appellant that the impugned DGFT Notification cannot be enforced on the subject import is legally not sustainable. 3.4. Placing reliance on the Principle of Estoppel, Learned AR submits that in the instant case, during the stay impugned imported good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essential with reference to penal provisions of Section 112(b) (knows or reason to believe), 114A (willful misstatement) 114AA (knowingly or intentionally) of the Customs Act,1962, there is no such requirement of the element of Mens Rea / Mala fide for imposition of penalty under Section 112(a) of the Customs Act, 1962. Penalty can be imposed, only when it is established that the goods imported are liable to confiscation under Section 111 of Customs Act, 1962. He relies upon (i). M/s Oceanic Shipping Agency P Ltd Vs CC 1996 (82) ELT 57 (Para.10) (ii). M/s Panorama V CC 2001 (130) ELT 877 (Para 5) 3.6. Learned Commissioner, AR submits further that the Adjudicating Authority has taken a stand that the impugned goods were not available and hence could not be confiscated, though they are liable to confiscation. This stand is totally against the legal position laid by Hon ble Supreme Court, High Courts and Tribunal; the impugned goods were cleared under bond and therefore, can be confiscated even in the absence their physical availability. He relies upon the following cases. (i). Weston Components Ltd Vs CC 2000(115) ELT 278 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be FTP : 2004-2009 considering B/L date 2.11.2007; Date of Purchase of Stamp Paper is not available in the Copy produced As per this Sales Terms of Annex J, the Shipment is to be effected during 1st October to 31st October 2007. Whereas, the impugned Bill of Lading referred in the HSS is dated 2.11.2007 As per condition 8 of Sl. No. 18 of Annex J, the Discharge Port is actually meant for Beypore Port (10 km from Calicut, 195 km from Kochi), where no ban is imposed by the DGFT Notification during the material period. (*Different discrepancies in different documents; summarised for ease of reference) He submits that in view of the submissions and legal position, the appeals of the appellants are liable to be rejected and the appeals filed by Revenue are liable to be allowed. 4. Heard both sides and perused the records of the case. The brief issue that requires consideration in this case is as to whether the appellants have violated the prohibition imposed by DGFT Notification No. 39/RE2007 dated 06.10.2007; as to whether, they are liable for penalty and as to whether the Commissioner should have imposed redemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Stay Order; Hon ble High Court of Kerala has only stayed the operation but have not set aside the Notification. That means that Hon ble High Court has stayed only the due action to be taken by the Department in respect of the impugned goods. Relying on Hon ble Supreme Court decision in the case of Sh. Chamundi Mopeds (Supra). He submits that quashing of an order results in the restoration of position as it stood on the date of the passing of the order which has been quashed; the stay of operation of an order does not, however lead to such a result; it only means that the order which has been stayed would not be operative from the date of the passing of the Stay Order and it does mean that the said order has been wiped out from existence. He also submits that Hon ble Supreme Court in the case of Indian Counsel for Enviro Legal Action (Supra) observed that when a party applies and gets a stay or injunction from the Court, it is always at the risk and responsibility of the party applying. Learned Commissioner arguing on the principle of merger and unjust enrichment submits threat the case is ultimately dismissed, the Interim Order stands nullified automatically; a Party cannot be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 1.5 In case an export or import that is permitted freely under this Policy is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted notwithstanding such restriction or regulation, unless otherwise stipulated, provided that the shipment of the export or import is made within the original validity of an irrevocable letter of credit established before the date of imposition of such restriction. Ongoing through the records of the case, we find that the appellants have submitted a few disconnected documents which look like sale deeds, contracts, agreements etc., however as pointed out by the Learned Commissioner AR, the documents are full of inadequacies making the authenticity of the documents subject to doubt. It is also not coming forth as to which of these documents pertain to the impugned imports. Moreover, we do not find any conclusive agreements indicating that an irrevocable letter of credit has been opened or has been enforced at the time of shipment. We find that Learned Commissioner has also observed in the impugned OIO that the appellants failed to produce the relevant letters of c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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