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TMI Blog2019 (11) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... being discharged on or before 20-11-2007. Hon'ble High Court However, dismissed the writ petition vide order dated 15-2-2008. Meanwhile, one of the appellants, M/s Parisons Agrotech imported 2999.804 MT of RBD palmolein, which house warehoused under 3 bills of entry and cleared provisionally later under various ex-bond bills of entry. The other appellant M/s Parisons Foods P Ltd imported 1000 MT of BD Palmolein and 2969.522 MT of crude palm oil, warehoused the same and later cleared provisionally under various ex-bond bills of entry. The appellants were issued Show Cause Notices dated 17-12-2008 and 6-11-2008 respectively seeking to confiscate the imported cargo under section 111(d) of the Customs Act, 1962 and seeking to impose penalty under Section 112(a) ibid. Commissioner of Customs, Cochin vide order No 41/2009 dated 27-03-2009 and 42/2009 dated 3.4.2009. Commissioner has imposed a penalty of Rs. 1.40 Cr and 1.75 Cr respectively on the appellants. However, the Commissioner has not imposed any fine in lieu of confiscation on the grounds that the goods were not physically available for confiscation. M/s Parisons Agrotech, vide appeal C/452/2007 and M/s Parisons Foods P Ltd, vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Commissioner AR, appearing on behalf of Revenue presented a detailed argument and submitted that under the legal background, the impugned goods were provisionally cleared through Cochin Port with the support of Bond executed by the Appellants. As the Hon'ble High Court dismissed the Writ petition of the Appellants on 15.02.2008, Department initiated action to confiscate the impugned goods and Adjudicating Authority imposed penalties on the importers after observing the Principles of Natural justice. The claim of the appellants is that Hon'ble High Court of Kerala issued Interim Stay Order (with modification & clarification) dated 25.10.2007, 20.11.2007 & 01.12.2007 and as such the Notification would be deemed to be not in operation during the relevant period and that when the Stay was in force, it cannot be stated that the imports made by them were contrary to the prohibition imposed under Customs Act, 1962. He submits that in case the Hon'ble High Court quashed the DGFT Notification, Appellants can very well claim that the DGFT Notification is not in force; when the impugned Notification is Stayed by issuing "Interim Stay Order", it only meant that "due actions to be taken", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court." He submits that by applying the ratio of the above judgement the instant Interim Stay Order was merged with the final Writ Order and thereby the Interim Order was nullified. Consequently, the impugned "Interim Stay Order" was non est in the eyes of law by applying the 'Doctrine of Merger' Principle. 3.3. Learned Commissioner, AR further submits that in case of M/s Kanoria Chemicals Vs U.P. State Electricity Board (1997) 5 SCC 772, Hon'ble Apex Court observed that "It is equally well settled that an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. He submits that in this background of provisional clearance of the impugned "palm oil" under bond and the ratio of cases cited above, the plea of non-existence of the impugned Notification is liable for dismissal. 3.5. Learned Commissioner, AR submits that in the instant case, the impugned Palm Oil were imported by the importer through the prohibited PORT against the DGFT Notification and thus it is established that the impugned Palm Oil were liable for confiscation. Hence, the plea of the importer that penalty should be confined only to willful acts of omission and commission in contravention of the provisions of an enactment cannot be accepted. Penalty must be imposed on a person who acts in conscious disregard of statutory obligations and suppresses material facts. Though existence of "mens rea" is essential with reference to penal provisions of Section 112(b) (knows or reason to believe), 114A (willful misstatement) & 114AA (knowingly or intentionally) of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 between MMTC & M/s Parisons Foods for the import of 1, 20,000 Tonnes of RBD was valid for One year (Extended up to 6th June 2007). This cannot be relied upon. "Indent for Import" containing Quantity, Delivery Schedule, Port of Discharge etc of Parisons not produced before the Adjudicating Authority * Concluding Part of "Sales Contract" ..."Please confirm that this sales contract correctly set forth the terms of the agreement by returning an executed copy by facsimile"...." Indicates that "Sales contract are not concluded at this stage, in the absence of any further documentary proof * They are not in the nature of sales contract. * Addressee is mentioned as M/s Parisons Exports Inc, India, Indonesia * Sl No.7 of HSS : Open General License under Import Export Policy 1997-2002 (Non-Existing Policy) It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarged at Kochi Port. Hon'ble High Court further ordered vide Order dated 01.12.2007 that the benefit of the order dated 25.10.2007 will be applicable to all vessels from which the goods were being discharged on or before 20.11.2007. Finally, the Hon'ble High Court of Kerala dismissed the Writ Petition filed by the appellants vide its Order dated 15.02.2008. Meanwhile, M/s Parisons Foods Pvt. Ltd. have imported RBD Palmolein and crude Palm oil totally valued at Rs. 13.41 crore (Tariff Value Rs. 7.41 crores) and M/s Parison Agrotech imported RBD Palmolein valued at Rs. 10.43 crores (Tariff Value Rs. 5.78 crores). 6. Learned Commissioner AR submits that the appellants have mis-conceived the legal position on Interim 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the Learned Commissioner AR, bond executed by the appellants at the time of provisional release provides for payment of any penalty and fine in lieu of the confiscation. Having bound themselves in such a manner, the appellants cannot take shelter under the High Court's Interim Order, where the Hon'ble High Court has dismissed the Writ Petition. 8. The second contention of the appellants was that the consignments were contracted before the imposition of prohibition and in terms of Para 1.5 of the Foreign Trade Policy the impugned imports are excluded by the restriction imposed by the Notification cited supra. We find that Para 1.5 of Foreign Trade Policy reads 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals of the appellants do not survive and are liable for rejection. 10. Coming to the departmental appeals, the appeals are made for imposition of redemption fine. As per our discussion above, the goods are liable for confiscation under Section 111(d) of the Customs Act, 1962. The goods were released on a bond provisionally. Therefore, Learned Commissioner cannot opine that the goods are not available for confiscation. Going by the ratio of the case laws submitted by the Learned AR, we find that Learned Commissioner has erred in not imposing redemption fine. Accordingly, we find that the appeals filed by Revenue are maintainable and suitable redemption fine in lieu of confiscation is imposable on the appellants. Looking into the circumstances of the case and the long litigation undergone by the appellants, we find that redemption fine could be limited to around 10% of the Tariff Value of the imports. 11. In the result, we dismiss the appeals No. C/452/2009 & C/453/2009 filed by the appellants. We allow the appeals of Revenue and impose redemption fine of Rs. 70 Lakhs on M/s Parison Foods Pvt. Ltd. and Rs. 50 Lakhs on M/s Parison Agrotech. (Order was pronounced in Open Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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