TMI Blog2024 (4) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the absence of validity of the impugned order on both counts. The impugned order is set aside - matter remanded back to the adjudicating authority for a fresh decision after permitting cross-examination of the witnesses sought for and to set right the terms of redemption - appeal allowed by way of remand. - HON BLE MR C J MATHEW, MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) Shri C M Sharma , Consultant for the appellants Shri Ram Kumar , Assistant Commissioner ( AR ) for the respondent ORDER PER : C J MATHEW The dispute in this appeal of M/s Ashwin Traders, a proprietorship concern, and Shri Ashwin Fulchand Karania arises from dismissal of their appeals, in order [order-in-appeal no. 140 141 (Gr.I IA)/2023(JNCH/Appeals dated 21st February 2023] of Commissioner of Customs (Appeals), Jawaharlal Nehru Customs House, Nhava Sheva, against resort to section 111(m) and section 111(o) of Customs Act, 1962 for confiscation of 13.5 metric tons of black pepper', valued at ₹ 72,78,746 imported against bill of entry no. 9926071/11.12.2020, for breach of conditions in notification no. 96/2009-Cus dated 11th September 2019 claimed then for exemption, of 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as diverted for the same reason and goods found at another premises under the control of the appellants herein. An aspect informing the proceedings was that the dilution of restriction on import of light black pepper , vide notification no. 21/2015-20 dated 25th July 2018 of Directorate General of Foreign Trade (DGFT), was predicated upon price being in excess of US$ 500 per kg which the said imports were allegedly not in conformity with. 3. In proceedings before the original authority, only the two appellants herein responded in writing and were represented in personal hearings. On the submission that the case against them had been made out only on hearsay, they sought cross-examination of persons whose testimony against them had been relied upon. It was also contended that the consignment under clearance, which was also proposed for confiscation, was not theirs. 4. We have heard Learned Consultant at length on the above issues. Learned Authorised Representative drew our attention to the provisions of the Foreign Trade Policy (FTP) prescribing utilisation of such goods without option of transferability and pointed out that, in relation to the goods procured from M/s Bruno Expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs duty using Advance Authorizations and diverted in the domestic market illegally. He made the whole deal in cash in lieu of legal monetary transaction through banking, as he has already accepted. He is an experienced merchant as well as an importer of spices, he can't claim his innocence for not verifying the goods or its source before purchasing them, while he got the delivery challan from the CHA which included the copy of Bill of Entry and invoice with it too. Further, delivery challan issued by Interglobe Shipping Logistics which shows that the goods are cleared under Bill of Entry No. 7930429 dated 17.06.2020 in name of the importer M/s Bruno Exports. Copy of said BE recovered from the storage facility at of M/s Eskimo Ice Mfg. Co. Pvt. Ltd. which clearly shows that the consignment is imported under Advance Authorizations. In view of above, the appellant was fully aware of the fact that the goods were non-duty paid and imported under Advance Authorization and full connivance with Shri Nilesh bought the said goods under cash transaction with full intent to get the benefit of the evaded Customs duty on the impugned goods by way of paying less for the said purchase t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods. The Tribunal has considered the scope of application of Section 125 which provides imposition of penalty in lieu of confiscation and has held in para 10 to 14 reproduced hereinbelow :- 10. A plain reading of the above section shows that it does not confer upon the Authority passing the Order any power to impose any conditions while allowing redemption of goods. 11. The scope of Section 125 of the Act is limited by the words in which it is framed and it is not open to the adjudicating authority or the Tribunal (who are creatures of the statute) to stretch, modify or restrict the scope of this Section; they are bound by it. Hon ble Supreme Court and High Courts can and do examine the validity of the laws and subordinate legislations and pass judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional redemption saying you can redeem only if you agree to re-export . In case of prohibited goods the adjudicating authority has only two options : (a) to allow redemption on payment of fine; or (b) to not allow redemption. 13. In view of the above, we find that the condition in the Order-in-Original that the goods should be re-exported after redemption is liable to be set aside and we do so. 14. Appeal is allowed to the extent that the condition in the Order-in-Original that the goods should be re-exported after redemption is set aside. Further we find that the ratio of the decision of the Tribunal in the case of HBL Power Systems Ltd. is squarely applicable in the present case. Therefore we hold that the impugned order ordering for re-export of the goods on payment of redemption fine is not sustainable in law and therefore we set aside this finding of the Commissioner (Appeals). and by the Tribunal thus 9. In other words, the Adjudicating Authority permitting re-export of confiscated goods is different from the compelling re-export of the goods by passing an Order. Section 125 of the Customs Act reads as follows : 125. Option to pay fine in lieu of confiscation. (1) Whenever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State Act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a Civil Court. No such delegation or conferment can ever be conceived. We are, therefore, of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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