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TMI Blog2024 (11) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... 24, have been set aside and the goods have been permitted to be re-exported on payment of fine of Rs. 25 lacs in lieu of confiscation and at the same time, the penalty imposed was reduced to Rs. 10 lacs. 2. The brief facts are being quoted from the case relating to CUSAP No.4 of 2024, wherein it has been stated that the respondents imported consignments of Areca Nuts claiming benefit of exemption from payment of customs duty in terms of Indo-Sri Lanka Free Trade Agreement notification dated 01.03.2023, which permits 100% exemption from levy of basic customs duty in respect of imports only from Sri Lanka. It is the case of the Revenue that as per the prior intelligence received by DRI, certain importers were engaged in malpractice of mixing consignments of Areca Nuts of Sri Lanka origin with that of shipments originating outside the SAARC territory and paying nil basic customs duty on the basis of notification dated 01.03.2000. It was suspected that the respondents were engaged in such exports and, therefore, the consignments imported by the respondents were put on hold and examined by the customs authority along with the officers of DRI in the presence of the authorized representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indonesia were being shared. It was evident that the consignment from Indonesia was being re-routed through Sri Lanka in order to avail the undue benefit of the notification. The statement of the partner under Section 108 of the Customs Act, 1962 admitting of having such conversation was also noticed. It was contended by learned counsel for the appellant that the confiscation of goods under Section 111(d) of the Customs Act, 1962 was rightly directed in terms of the provisions by the adjudicating authority. Therefore, the discretion exercised by it under Section 125 of the Customs Act, 1962 of absolute confiscation of goods was not liable to be interfered with. 4. Learned counsel for the appellant has taken pain to take this Court to the order dated 14.12.2023 passed by the adjudicating authority to submit that there was no occasion to interfere with the said order by the appellate authority. The request for re-export made by the respondent importers was rejected. The respondents challenged the order in original by filing appeal before the appellate authority. In appeal the order dated 15.04.2024 passed by the adjudicating authority was upheld. 5. It was further submitted by lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 25 of the Food Act of 2006 read with Food Safety Standard Authority of India Import (Regulations) 2017 requires that all imports of food items ought to be subject to the provisions of the Food Act of 2006. The respondent is a regular importer of food items and duly registered with the FSSAI and imported 6 consignments of Areca Nuts and filed Bills of Entries dated 17.09.2023, 01.10.2023, 08.10.2023, 08.10.2023, 08.10.2023 and 08.08.2023 at the Port of ICD CONCOR, Ludhiana. The consignments comprising of Sri Lankan origin Areca Nuts from M/s DLK Spice Export, 476/2, Kandy Road, Anwarama, Mawenella, Sri Lanka was done while various invoices which have been mentioned in the petition. 9. It is stated that in terms of the Customs Act, 1962 as well as Foreign Trade Policy, whenever any goods namely food items are being imported, the same are subject to Fumigation Certificate as well as Phytosanitary Certificate issued in terms of the requirements of FSSAI Department. The respondents on the basis of the aforesaid documents issued by the exporter filed bill of entries under Section 46 of the Customs Act for the purpose of clearance of goods. Since the imported Areca Nuts having o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were facing immense pressure from the supplier. The respondents vide letter dated 25.11.2023, 05.12.2023, 06.12.2023 and 12.12.2023 requested for re-export of the imported consignments. The retesting was not acceded to and the Custom Department proceeded to reject the request for re-export. He submitted that the CESTAT ultimately accepted the request and the respondents did not want the concerned goods to be taken, having noticed the report of the laboratories, which they are not contesting. Further submitted that they should not be made to suffer on account of substandard material having been sent by the supplier to them. It is submitted that the order passed by the CESTAT does not warrant any interference. 12. We have carefully considered the written submissions as having been filed by both the parties and the judgments cited. We find that the only question which needs to be determined by this Court is whether the Tribunal has erred in setting aside the order in original and order in appeal whereby the absolute confiscation of the Areca Nuts imported by the respondents was ordered. 13. We find that the learned CESTAT while partly allowing the appeal, passed the following orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s received, the authorities can be said to have correctly taken a decision to confiscate the substandard goods and not allow to be re-exported. 16. From the documents which have been noticed in the order in original dated 14.12.2023, it is apparent that the goods having been imported from Sri Lanka stands fully established. The report of Areca Nut Research and Development Foundation, Mangalore mentioned that the ceased Areca Nuts are mixture of Sri Lankan and Indonesian origin. The exemption from payment of custom duty is for imports only from Sri Lanka as per the notification No. 26/2000 dated 01.03.2023. 17. While the appellants have relied upon the said report to treat all the Areca Nuts to be of Sri Lankan origin, we find that the Supreme Court in Laltanpuh's case (supra) has held that the report of the Areca Nut Research and Development Foundation, Mangalore, about foreign origin of ceased goods could not be relied upon. At the same time, there is a certificate of origin, duly signed by the Assistant Director of Commerce, Colombo, which has been placed on record as Annexure R-13, which has not been found to be forged by the authorities. The verification of the consignment by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permitting re-export would not serve any purpose. It has been more than 06 months since the import has taken place and it is likely that the goods will further deteriorate and would not have any commercial value and would be in the danger of losing industrial sage, if any. Allowing the same to further deteriorate would only cause unintended financial loss to the appellant end would cause wasteful outflow of foreign exchange from the Indian importer to the foreign buyer. The Department contends that no evidence of the foreign buyer accepting the consignment has been given. However, we find that wide letter dated 24.04.2024, M/s DLK Spice Export, Sri Lanka have requested the appellants to make the outstanding payment and to avoid financial strain, immediate action may be taken to re-export the goods. In view of the same, we are of the opinion that benefit of doubt can be given to the appellant as they are regular importer is not denied. Therefore, we find that ends of justice can be met if suitable redemption fine is imposed in lieu of confiscation and if the appellant is suitably penalized while permitting the re-export of the impugned goods. Indian Authorities should not have a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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