TMI Blog2022 (2) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. Admittedly the impugned goods are classifiable as per ITC (HS) Code under the heading 7208 52 90 and the declared CIF value is US $ 425 per Tonne and hence as per this licensing note are freely importable. In the case of Sheikh Omer referred to by the learned authorized representative Hon ble Apex Court has clearly and unambiguously stated Any prohibition means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues. Licensing Note 3 provides for exceptions and the situations in which these goods when imported are freely importable and not restricted. Commissioner has himself held that the impugned goods are prime and have cif value of US $ 425 per Tonne. With that finding on record the order holding goods as restricted as per Notification No 63/2008 cannot be sustained. The impugned order is completely a non speaking order, passed without consideration of any submission and the law on subject - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by MTC. They were also restricted vide Notification No.63/2008 dated 21.11.2008 as per Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. Thus they were liable for confiscation under Section 111(d) of the Customs Act, 1962 and appellant was liable for penal action under Section 112(a) of the Customs Act, 1962. 2.5 The case was adjudicated by the Commissioner as per the impugned order, referred in para 1 above. Aggrieved appellants have filed this appeal. 3.1 I have heard Ms Reena Ravat, Advocate for the appellants and Shri Manoj Das, Assistant Commissioner, Authorized for the revenue. 3.2 Arguing for the appellants learned counsel submits that Commissioner rejected the Department's contention that the impugned consignment was 'secondary as stated in the examination report and categorically held that the materials are actually prime He held Appellant s guilty of failure to produce MTC as required in Public Notice 92/2009 and further held that the same were restricted in terms of DGFT Notification No. 63/2008 dated 21.11.2008 and thus the import was in violation of provisions of Foreign Trade Policy 2004-2009. Commissioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 111(d). In case of Sheikh Mohd. Omer [1970 SCC (2) 728] Hon ble Apex Court held- What cl. (d) of s. 111 says is that any goods which are imported or attempted to be imported contrary to any prohibition imposed by any law for the time being in force in this country is liable to be confiscated. Any prohibition referred to Ill that section applies to every type of prohibition . That prohibition may be complete or partial Any because s. 3 of the Imports and Exports (Control) Act, 1947 uses three different expressions prohibiting restricting or otherwise controlling , we cannot cut down the amplitude of the word any prohibition in s. 111(d) of the Act. Any prohibition means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues. The declared assessable value of the impugned goods was ₹ 51,93,066/-. The rate of redemption fine and penalty depends on the totali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of the imported goods corresponds with the contemporaneous import price of the material during October 2009 end when the Letter of Credit was opened, I find that the materials are actually prime and the deficiency in this case is the failure on the part of the importer to produce the MTC as required under Public Notice No.92/2009. However, as the goods were restricted by the Notification No.63/2008 dated 21.11.2008 (continued till 8.1.2010, the date on which this restriction was withdrawn vide Notification No.23/2009 dated 8.1.2010), the imported goods have violated the provisions of Foreign Trade Policy 2004-09, thereby rendering the impugned goods liable for confiscation under Section 111(d) of the Customs Act, 1962 and importer liable for penalty under Section 112(a) ibid. 4.3 From the findings as recorded in the impugned order, revenue has not proceeded against the appellant on the charge of misdeclaration of goods but have held them liable for confiscation for the reason,- a. Non production of MTC as prescribed by the Public Notice No. 92.2009 dated 02.12.2009; b. The goods were restricted by the Notification No 63/2008 dated 21.11.2008. 4.4 Public Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods may be referred for test or to SIIB for further investigation, if necessary. A.K.Das COMMISSIONER OF CUSTOMS (IMPORT), JNCH, NHAVA SHEVA. 4.5 The Public Notice itself envisages the situation wherein the MTC would not have been produced and directs that assessment should be made accordingly. It do not state that the proceedings leading to confiscation be initiated. Further Commissioner who has issued this public notice, directing that all the goods for which MTC is not produced be considered as Secondary / Defective / Seconds only and assessed accordingly. , has in the impugned order held the goods to be of prime quality. Having done so Commissioner could not have held any contravention in non production of MTC, which even as per Public Notice is not a mandatory requirement, but only prescribed as an aid for assessment of goods. 4.6 Commissioner has held goods to be liable for confiscation as they are restricted as per Foreign Trade Policy, 2004-2009 read with Notification No.63/2008 dated 21.11.2008. However while doing so he has ignored the licensing note 3, which is part and parcel of policy. This in respect of the impugned goods reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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