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TMI Blog2024 (2) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... ver/Range Rover V8 supercharged, Red Colour" being used motor vehicle imported under Transfer of Residence (T.R) which was appraised by M/s. Valueguru Chartered Engineers and Valuers Pvt Ltd., confirming its second-hand status. Despite claiming TR eligibility, the appellant, faced challenges in providing necessary documents. Therefore, he admitted a lack of availability of the documents, expressing desire to keep the car by paying fine and penalty due to T.R. non-compliance. In the original proceedings the Adjudicating Authority vide order no.101601/2023 dated 17.04.2023 noted that the importers sought clearance of the used motor vehicle under TR. The Adjudicating Authority observes that Licensing notes of Chapter 87 (3) (I) (a) states that the conditions of sl.no. 1 & 2 of the licensing notes are not applicable for individuals coming to India for permanent settlement after two years continuous stay abroad, provided that the car has been in the possession of the individual for a period of minimum one year abroad. However, when asked to provide the document evidence of fulfilment of the said conditions of T.R, the appellant had replied that he has lost the passport. The Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector, Central Foreigners Bureau, Bureau of Immigration, New Delhi to come to the conclusion that the condition of continuous stay abroad as required under import policy condition 3(I) of chapter has not been fulfilled, and that no Show Cause Notice was served to the appellant and further that the communication received from the Assistant Director, Central Foreigners Bureau, Bureau of Immigration, New Delhi was not made available to the appellant, the appellate authority found that the impugned order was violative of the principles of natural Justice. It was also found that the appellant was not given an option to redeem the car after imposing penalty in the impugned Order-in-Original and that it appeared too harsh, as the appellant brought the car after filling valid Bill of Entry under Section 46. Therefore, the Appellate Authority remanded the matter to the Original Authority for passing an order afresh. However, in the remand proceedings the Lower Authority after recording that the importer vide their letter dated 05.03.2024 and 15.04.2024 had requested to adjudicate the case without issuing Show Cause Notice and personal hearing, with a request to take lenient view on imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion issued in the earlier order and such failure has resulted in gross injustice to the appellant. It is the submission of the learned counsel that the lower appellate authority also failed to take note of the language used in Section 125 of the Customs act in terms of which the adjudicating authority shall give redemption except in the case of import involving prohibited goods and therefore has traversed beyond the statutory mandate to order redemption only for re-export which is not proper and correct. 5. Shri. N. Satyanarayanan, learned authorised representative, reiterated the findings of the appellate authority. 6. Heard both sides and perused the appeal records. The matter is before this Tribunal after the second round of litigation before the lower authorities. In the first round of litigation, the adjudicating authority has found that the appellant is not entitled to the benefit of T.R. and thus for violation of the policy conditions, had ordered absolute confiscation of the vehicle without an option to redeem and had also imposed a penalty. It is seen that upon appeal, the Commissioner Appeals has referring to Public Notice No.3(RE- 2000)/1997-2002, dated 31.03.2000, fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose to completely ignore the same and has mechanically reproduced the findings of the lower authority verbatim while upholding the impugned order in original, thus exhibiting an appalling non application of mind. 8. Be that as it may, the fact remains that indisputably, the appellant has been unable to evidence that the appellant has fulfilled the conditions of the T.R. as was conceded before the lower adjudicating authority; and indisputably, the appellant is therefore also unable to evidence compliance of the conditions of ITC (Hs) Schedule I- import policy appended to chapter 87, that are required to be adhered while importing a passenger vehicle, a restricted item. 9. However, that does not translate into a power to the customs authorities to give re-export as the sole option upon imposing a redemption fine, as if compelling a re-export. It is seen that a division bench of this Tribunal has held in the decision in HBL Power Systems Ltd v.CC, Vishakapatnam, 2018 (362) ELT 856 (Tri- Hyd) as under: 8. We find in the case laws relied upon by the Learned Departmental Representative, the Adjudicating Authority "permitted re-export of goods" and the question was whether redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the laws and subordinate legislations and pass judgments annulling or modifying them by neither the officers nor the Tribunal, as creations of the statute cannot do so. This position has been explained clearly by the Hon'ble Supreme Court in UOI v. Kirloskar Pneumatics Company 1996 (84) E.L.T. 401 (S.C.) in which it was held as under: "According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned Counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find from several Tribunal's decisions and Hon'ble High Court's decisions, where the goods are not prohibited, absolute confiscation is not warranted. We rely on the decision of the Hon'ble CESTAT Mumbai in the case of Yakub Ebrahim Yuseph v. CC, Mumbai (supra) held that regarding absolute confiscation of such goods which are not prohibited in detail by referring all the previous decisions made by the Apex Court, various High Courts and other judicial forums in this regard and held as follows:- "the prohibition relates to goods which cannot be imported by any one, such as arms, ammunition, addictive substance viz. drugs. The intention behind the provisions of Section 125 is clear that import of such goods under any circumstances would cause danger to the health, welfare or morals of people as a whole. This would not apply to a case where import/export of goods is permitted subject to certain conditions or to a certain category of persons and which are ordered to be confiscated for the reason that the condition has not been complied with. In such a situation, the release of such goods confiscated would not cause any danger or detriment to public health." The above view is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant paragraph is as under: "9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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