TMI Blog2006 (1) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. Shri N.V. B. Nair, JDR, for the Respondent. [Order] - Heard both sides. 2. This is an appeal against an' Order-in-Original dated 28-10-2005 passed by the Commissioner of Customs, Jawahar Custom House, Nhava Sheva, Dist. Raigad. 3. The appellants have imported a vehicle BMW 735 ILA RHD Chassis No.WBAGH62040 DU 25390, Engine No. 517 22573 under EPCG Licence No. 0330001318 dated 30-8-2001 vide Bill of Entry No. 545360 dated 24-4-2002. The declared value of vehicle was Rs. 22,81,151/- (Rupees Twenty Two Lakhs Eighty One Thousand One Hundred Fifty one only). A Bond and Bank Guarantee had been furnished by the importer at the time of import of the vehicle to pay on demand and without any demur the Customs duty saved with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E-2001)/1997-2002, dated 31-3-2001, the import of the car would have to be governed by Para 2.7 of the EXIM Policy read with the EPCG Licence issued to the appellants. (ii) In the light of the decision of the CESTAT, Mumbai in the matter of Althaf Shoes Pvt. Ltd. v. CC (Import), Nhava Sheva reported in 2005 (188) E.L.T. 504 (T) = 2005 (71) RLT 481, non-production of Homologation Certificate by importer can not be held to be a violation and that the liability to produce the Homologation Certificate and the liability to fulfill the conditions of CMVR were on the dealer and not on the importer. (iii) A redemption certificate was granted by the office of the Jt. DGFT Mumbai to the appellants for redeeming the Bank Guarantee imposed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o issue licence even after the "Restricted Item" in case of EPGC Scheme. A plain reading of the EXIM Policy would reveal that DGFT has been vested with the powers to waive any conditions of the import and export prescribed by any other statute governing the Import and export. The powers exercised in such direction by the DGFT authorities in the public interest can not be challenged by the Customs Authorities. Any further, condition, if necessary would have been and ought to have been incorporated in the licence itself by the issuing authority. The Customs authorities should not venture to fill the gap in absence of any condition. The contentions raised by the appellants gain further strength from the fact that such a waiver of homologation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Hon'ble Supreme Court handed out in the matter of Basheer @ N.P. Basheer v. State of Kerala [2004 (175) E.L.T. 12 (S.C.) = 2004 (60) RLT 843 (S.C.)] where' reference was made to two sentences from the order T. Barai v. Henry Ah Hoe and Anr., AIR 1983 SC 150 was cited as: "The rule of beneficial construction requires that even ex-post fact law of such a type should be applied to mitigate the rigor of the law. The principle is based both on sound reason and common sense." 9. Perusal of the impugned Order-in-Original reveals that the scheme devised for enforcement with criss-cross references made in the EXIM Policy to the CMVR and the set of parameters stipulated for various categories have not been understood in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific undertaking after being informed that his was the first vehicle of the particular model being imported into India has every right to presume that the prototype of the vehicle had already passed the necessary tests. Having failed in their duty to monitor the imports, customs authorities cannot try to cover up their mistakes by loading the onus on the importer, that too when the importer happens to the end user and is neither a manufacturer of cars nor a dealer in cars. 11. Perusal of the bond and the bank guarantee executed by the appellants at the time of the import reveals that the two instruments were executed for the sole purpose of fulfillment of the conditions stipulated under Notification 49/2000-Cus., dated 27-4-2000, Claus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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