TMI Blog2023 (2) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT ], has got no application in the present case. In that case ultra vires of the DGFT Notification restricting and amending the policy was under challenge. Besides the amount of MIP fixed for cashew nuts was in dispute which is not the case here. Hence the case law relied upon by the Ld.Commissioner (Appeals) is completely distinguishable from the present case. In the present case, the goods were ordered for shipment in 19.04.2021 and goods were shipped on 26.04.2021. So it is admitted that the items become prohibited since the declared value was much lower than Rs. 121/- per piece as per the DGFT notification dated: 26.04.2021. In terms of the policy para- 1.05, as transitional arrangement in case of export and import that is permitted freely under FTP is subsequently subjected to any restriction or regulations, such export or import ordinarily be permitted, notwithstanding such restrictions or regulations, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restrictions - Since the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PORT/2741/ 2021/Gr.V (A B) Dated: 27.10.2021 2,18,000 Navya Enterprise Appeal No: C/75511/2022 B/E No. 3989552 dated:18.05.2021 KOL/CUS/(Port)/ AKR/213/2022 Date: 31.03.2022 KOL/CUS/AC/ PORT/2740/ 2021/Gr.V (A B) Dated: 27.10.2021 1,90,000 Balaji Impex Being aggrieved with the above three (3) Orders-in-Appeal passed by the Ld. Commissioner of Customs (Appeals), Kolkata, whereby he rejected the Appeals before upholding the three (3) Orders-In-Original passed by the Ld.Adjudicating authority. Since the issue in dispute in all the three Appeals are common, they are taken up together for hearing . 2. The facts of the case in brief are that the importers, imported Mosquito swatter/bat in three (3) consignments, stuffed in three containers at a declared unit price of USD 0.34 per piece which works out to Rs.25.41 per piece. The goods were shipped on 26.04.2021 against three (3) different Bills of Lading from China all dated: 26.04.2021. Three Bills of Entry we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the subject goods were held liable for absolute confiscation u/s 111(d) of the Customs Act, 1962 and penalty was also imposed u/s 112(a)(i) of the Customs Act,1962 for their acts of omission and commission rendering the goods liable for confiscation u/s 111(d) of the Act ibid. 7. The Appellants preferred separate Appeals before Ld.Commissioner (Appeals) against the adjudication orders. Ld.Commissioner (Appeals) vide the impugned common Orders-InAppeal held that the imported goods are prohibited in nature since the DGFT notification was issued on 26.04.2021 and the Bill of Lading date was also 26.04.2021. Hence, on the import date (B/L date) the goods were prohibited. Therefore, in light of Hon ble Supreme Court s judgement in Raj Grow Impex LLP case and Pam Agro Industries VS. UOI, 2021(377) E.L.T. 815 (Guj.), the order passed by the adjudicating authority needs no intervention and upheld the order passed by the Adjudicating authority. 8. These three Appellants have filed separate Appeals before this Bench praying to set aside the orders passed by the Ld.Commissioner (Appeals) and to allow the release of goods on enhancement of value as per DGFT Notification. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of peas dealt in that case was licensable, there was quantity restriction and import was subject to actual user condition. Whereas in this case the import of mosquito swatter was only prohibited if imported below the Minimum Import Price as per DGFT notification no: 02/2015-20 dated: 26.04.2021. Therefore, the case laws relied upon by the lower Authorities is not applicable to the facts of the present case. 12. The Department all along is of the opinion that, prohibited goods cannot be redeemed. Contrary to the decision of the Supreme Court, that absolute confiscation should be an exception rather than a rule, but without exploring any other alternative they have held that goods are liable for absolute confiscation. 13. The Ld. Consultant on behalf of the Appellants also referred to the case of Jawed-Ul-Hasan Vs. Commissioner of Customs, Calcutta reported in 2001 (131) ELT 406 (Tri-Cal.) wherein it was held that; Redemption fine is reducible when assessee had already taken steps for import of goods before import policy changed. 14. Further in the case of Har Govind Das K. Joshi Vs. Collector 1992 [61] ELT 172 [S.C.] it was held that absolute confiscation of goods by Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said goods before 26.04.2021, though the goods were actually shipped on 24.06.2021 resulting in technical confiscation of the goods, penalty is not imposable as per the submission made in the appeal memorandum. Since there is no mala fide intention or mensrea establishing wilful disobedience of law but coincidently the date of shipment and B/L was on the same date, penalty may please be waived. Ref Case law: R.M. Electronics Vs. Commissioner of Customs Jaipur, [2003 (160) ELT 896 at page 897 (Tri-Del)], Kuresh Laila Vs. Commissioner of Customs, Chennai reported in [2005 (189) ELT 45 at P-47 (Tri-Chennai)], Jain Export Pvt.Ltd Vs. Union of India [1993 (66) ELT 537 (SC)]. 20. The Ld. Authorized Representative on behalf of the Revenue submitted that, there is no doubt about the fact that the imported goods (mosquito swatter/bat) are prohibited goods in terms of notification dated: 26.04.2021 issued by DGFT. The date of DGFT notification coming into effect and the Bill of Lading being the same (26.04.2021), the Appellants cannot deny that the imported goods fall in the category of prohibited goods on the date of import. The DGFT Notification dated: 26.04.2021 has been issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same must indicate application of mind to the submissions made by the parties and the reason why the submission is not accepted or accepted. This giving of reasons while dealing with the submissions alone injects objectivity in deciding the appeal/dispute. Moreover, this alone would let the parties know as to why its submissions are not accepted so as to effectively challenge it before the superior forum. Moreover, the superior forum would have the advantage of knowing the reasons which weighed with the authority in accepting or not accepting a particular submission. Thus reasons are the lifeblood of any adjudicating/appellate order.6. Therefore, without having examined the merits of the dispute, we set aside the impugned order dated August 11, 2017 and restore the petitioner s appeal to the file of the Additional Director of Foreign Trade for fresh disposal in accordance with the principles of natural justice. 24. The case law relied upon by the Ld. Commissioner (Appeals) M/S. Pam Agro Industries, has got no application in the present case. In that case ultra vires of the DGFT Notification restricting and amending the policy was under challenge. Besides the amount of MIP f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or import of peas was challenged, where on import of peas, there was quantity restriction and import was subject to actual user conditions. But this case law relied upon by the lower authority is absolutely distinguishable from the present case, where there is no such quantity restriction and actual user condition. Neither the appellants challenged the ultra vires of the present DGFT Notification No. 02/2015-20 issued on 26.04.2021, as was in the case of Raj Grow Impex LLP relied by the Adjudicating authority nor the case of Pam Agro Industries Vs. Union of India relied upon by the Ld. Commissioner (Appeals). It is pertinent to mention here that, even after the specific order of the Supreme Court, Peas are getting cleared by Customs on adjudication of the cases, but in this case absolute confiscation was ordered by the lower adjudicating authority by misconstruction of the Supreme Court s order. 29. Ld. Commissioner (Appeals), passed his order citing the case law of Pam Agro Industries, supra without refuting the submissions made before him for which this present appeal has been made, mainly on the ground that even if the goods in a technical sense becomes prohibited because i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree Judge Bench of Hon ble Supreme Court in UOI Ors Vs. Raj Grow Impex LLP Ors delivered on 17.06.2021. The Ld.Consultant on behalf of the Appellant have taken two points strongly that in the case of Raj Grow Impex, wherein import of peas and pulses with quantity restrictions obviously with license cannot be equated with the present case where there was only restriction of Minimum Import Price. As per the container track report, the goods were processed for export but B/L was only issued on 26.04.2021, on which date the policy got amended by virtue of the restrictions brought in. From the facts it will be evident that they were not aware of the amendment in the policy, hence the case is completely distinguishable from the present case. 32. I find that the goods were ordered for shipment in 19.04.2021 and goods were shipped on 26.04.2021. So it is admitted that the items become prohibited since the declared value was much lower than Rs. 121/- per piece as per the DGFT notification dated: 26.04.2021. In terms of the policy para- 1.05, as transitional arrangement in case of export and import that is permitted freely under FTP is subsequently subjected to any restriction or regu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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