TMI Blog2008 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr. Y.D. Banga, SDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - These three appeals are directed against the order-in-original No. 159/ 07CC(I)JNCH dated 14-2-2008, vide which the adjudicating authority has confirmed the demand of duty confiscated the live consignment also confiscated finished products lying in the factory premises of the main applicant and imposed redemption fine and penalties on the company and also imposed penalty on the partner and the accountant of the firm. 2. The necessary facts that arise for consideration are, the main appellant's factory was visited by the authorities and on a preliminary investigation it revealed that the appellant's firm imported boric acid without valid import permit/licence from Central Insecticide Board and Registration Committee, Faridabad. The records were resumed and further statements were recorded. On completion of investigation, it was alleged that:- (i) The said firm had imported 300 MTs of Boric Acid during the period 29-3-2006 to 6-11-2006 in 13 consignments through Nhava Sheva Port. (ii) In terms of Notification 2/2006 dated 7-4-2006 issued by DGFT, and Section 3(e) of Insecticide Act, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmit is sued to the said firm altogether valued at Rs. 51,03,909/- as detailed in Annexure B-2 to this notice is liable for confiscation under Section 111(d) of the Customs Act, 1962. However, the said goods are not available for confiscation. (ix) M/s. Jaysun Enterprise is also liable to penal action under Section 112(a) of Customs Act, 1962 for the Acts on their part which resulted in illegal importation of 220 MT of boric acid and contravention of various provisions of Customs Act, 1962, FT (DR) Act, 1992 and FTP 2004-09 as discussed above. 3. On the above conclusion, a show cause notice was issued to the appellants directing them to show cause to the Commissioner of Customs as to why:- (i) 60.150 MTs of Boric Acid valued at Rs.19,50,793/- imported without valid import licence/permit and seized at the factory premises (20.150 MT) and at Nhava Sheva Port (40 MT) on 23-11-2006 and 3-1-2007, respectively should not be confiscated under Section 111(d) of the Customs Act, 1962. (ii) 5.450 MTs of Ceramic Frit - 444 Grade marked as KGL-4 M/s. Jaysun Enterprise valued at Rs. 43,600/- manufactured from illegally imported boric acid and seized at the factory premises on 23-11-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 112(a) and (b) of the Customs Act, 1962. 4. Since all the three appeals are arising out of the same order-in-original, they are being disposed off by a common order. 5. Ld. Counsel appearing on behalf of all the three appellants submits that the adjudicating authority has erred in confiscation of the consignments and imposing penalty. He draws our attention to para 8(i) in the order-in-original and submits that the Notification issued by the DGFT clearly says that boric acid imported for non-insecticidal purpose will be subject to import permit/licence issued by the authority, if the said boric acid falls under Customs Tariff Heading No. 28100020. He submits that 159.85 MT of boric acid, which were cleared by the authorities earlier were declared by the appellants as falling under Customs Tariff Heading 3818. It is his submission that, hence this notification is not applicable to the consignments cleared earlier. It is his submission that consignments, which were cleared by the appellants were finally assessed under the provisions of Section 47 of the Customs Act. Hence, until revenue file an appeal against such assessed bill of entry there cannot be any confiscation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities. The said goods were allowed for home clearance, after the discharge of duty liability as assessed by the authorities. This would indicate that the assessing officer had finally assessed the bills of entry and, hence, it is art assessment order under Section 47 of the Customs Act, 1962. If that be so, the course open to revenue, would have been to file an appeal or review against such assessment. In the absence of any review/appeal against the assessed bills of entry, the issue is squarely covered in favour of the appellants by the judgment of the Hon'ble High Court in the case of Best and Crompton Engineering (supra). In the said judgment, their Lordships was hearing an identical issue, wherein their Lordships at para 7 held as under:- We have carefully considered the submissions of the learned counsel appearing on either side. The question that is before us and stands referred to us is not very much on the relative scope of Sections 13 and 23. Therefore, we are not obliged to advert to the said aspect to consider or render our opinion in this regard. On the other hand the only question that stood referred to us is the nature and character of an order passed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority found that the import was in contravention of the provisions of the Act and while ordering confiscation has allowed clearance on payment of the fine and it is only on payment of such fine and the duty, order or endorsement under Section 47 came to be made. The exercise of power under Section 47 either way has the consequences of conferring or denying rights to a citizen and correspondingly certain rights or obligations vest with the Department. An exercise of power with such consequences has necessarily to be viewed as a quasi-judicial exercise of power and in the absence of any specific provision or power conferred upon such officer to review or alter or cancel the said order, the proper officer empowered to exercise power under Section 47, cannot be said to possess any such power and no such power could be considered to in here in him by mere inference. Any error in such exercise may apparently be amenable for correction by the authorities higher in the hierarchy under any one or other provisions but it is not given to the every officer or authority to go back on the order earlier passed, particularly as noticed above, when there is not specific provision enabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is undisputed that this quantity of 20.150 MTs is out of the 12 consignments of which were cleared by the appellants during the period 29-3-2006 to 20-10-2006. As we have already held herein above, that consignments of Boric acid, which were assessed finally and cleared by the authorities earlier, have attained finality, hence the revenue cannot today allege that balance stock of these goods are also liable for confiscation. Hence, the confiscation of the 20.150 MTs of Boric acid, which is found in the factory premises of the appellant is unwarranted and is incorrect. Accordingly, the said confiscation is set aside. (v) As regards the confiscation of 40 MT of the Boric acid, which was seized at the Nhava Sheva Port, we find that the said Bill of entry was filed by the appellants as the product falling under Chapter 38.18. Since the DGFT Notification dated 7-4-2006 clearly indicates that import of Boric acid for non-insecticidal purposes would require an import permit issued by the CIB RC, the appellants having not produced the said import permit, we are of the considered view that this consignment of 40 MT is liable for confiscation. Since the goods are liable for confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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