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TMI Blog2002 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Samsung for import of CPT. 3.Upon publication of the new Import Policy on 30th March, 1988, petitioner No. 1 came to know of the Order No. 97/85-88, dated 23rd February, 1988 issued by respondent No. 1 in exercise of powers conferred by Section 3 of the Imports and Exports (Control) Act, 1947 (hereinafter referred to as "the Amendment Order") whereby the original Clause 11(1)(d) of the Imports (Control) Order 1955 came to be amended and the words "or otherwise" appearing in the original clause were deleted and the said clause after amendment read as under : by trans"(d)hipment or imported and bonded on arrival for re-export as ships stores to any country outside India except Nepal, Tibet and Bhutan or imported and bonded on arrival for re-export as aforesaid but subsequently released for use of Diplomatic personnel, Consular Officers in India and the officials of the United Nations Organisation and its specialised agencies who are exempt from payment of duty under Ministry of Finance (D.R.) Notification No. 3, dated the 8th January, 1957 and United Nations (Privileges and Immunities) Act, 1947, respectively." 4.The effect of the above amendment was that the order for re-expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted import of the goods without requirement of an import licence and, alternatively, it was contended that they were under the bona fide belief that the imports would be covered under OGL. The petitioner No. 1 also reiterated that they were not aware of the amendment and the changes made in the import policy until 30th March, 1988. In order to bring home their submission, it was also urged that even the department was unaware of the amendment effected in the import policy till 30th March, 1988. It was thus submitted that looking to the conduct of the petitioners after 30th March, 1988 they have clearly established their bona fides in the matter. 8.The respondent No. 4, after having heard the petitioners, vide his order dated 13th June, 1988 (issued on 8th November, 1988) with respect to one consignment and by subsequent order dated 16th September, 1988 (issued on 8th November, 1988) with respect to other 8 consignments, was pleased to reject the aforesaid submissions of petitioner No. 1. The respondent No. 4 also rejected the submission of petitioner No. 1 that it had acted bona fide and taken all possible steps to cancel the aforesaid import contract and the Letter of Credit. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house itself. No customs duty was paid by the petitioners. Thus the submission is that the goods in question did not become part of the mass of the goods within the country. In other words, it did not mix with the land mass of India. The goods were all along under the control of the Customs right up to the date of export. Hence, there was no import into India as contemplated under the Customs Act, as such there was no question of any contravention of Section 111(1)(d) of the Customs Act. 13.In support of the above submissions the learned Counsel for the petitioner relied upon judgment of the Apex Court in the case of Siemens Ltd. v. CC - 1999 (113) E.L.T. 776 (S.C.) and Union of India v. Apar Private Ltd. - 1999 (112) E.L.T. 3 (S.C.) = 1995 (5) JT 160. He also placed reliance on the judgment of the Apex Court in case of Garden Silk Mills Ltd. v. Union of India - 1999 (113) E.L.T. 358 (S.C.) and particularly laid emphasis on para 16 thereof, which reads as under : "...It would appear to us that the import of goods into India would commence when the same cross into the territorial waters but continues and is completed when goods become part of the mass of goods within the country." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. He also pointed out that the Apex Court in the case of Akbar Badruddin Jiwani v. Collector of Customs - 1990 (47) E.L.T. 161 (S.C.) has held that mens rea is necessary for imposing penalty on the importer under Section 112. In the present case the fact that no penalty was imposed on the petitioners is one of the indications to show that there were no mala fides or mens rea on the part of the petitioners in importing the goods so as to contravene the Import Control Order. It is also suggested that re-export has earned valuable foreign exchange or the country, as such, imposition of redemption fine in the facts of the present case being unjustified is liable to be quashed and set aside. 16.Per contra, Mr. R.V. Desai, learned Senior Counsel for the revenue refuted all the submission and relied upon the judgment of the Apex Court in the case of D. Navinchandra and Co. v. Union of India - 1987 (29) E.L.T. 492 (S.C.) = (1987) 2 SCR 989 and contended that once having paid redemption fine without any protest the petitioners cannot be allowed to blow hot and cold so as to contend contrary to their conduct. He urged that once having accepted the adverse orders, this Court should not int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me crosses the territorial waters and it continues and completes when the goods become part of the mass of goods within the country. Based on this premises further extension of the same argument is that since the goods were warehoused and were exported from warehouse itself there was no import of goods into India as such the redemption fine could not have been imposed on the ground that the goods were imported into India. The submission of the learned Counsel for the petitioners, that there was no import as contemplated under Sections 14 and 15 of the Act as the taxable event was not complete, in our view, is misplaced for the reasons recorded hereinafter. 20.In order to appreciate the contention raised in this behalf, it is necessary to notice the scheme of the Customs Act. The Customs Act is an Act to consolidate and amend the law relating to Customs. In order to appreciate the contention raised in this petition, it is necessary to notice a basis premise that under the Customs Act goods entering into India becomes imported goods and chargeable to duty under Section 12, unless they are exempt from payment of duty by virtue of some of the specific provisions. Section 14 deals with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvision of the Customs Officer. With these restrictions on unloading of the imported goods, it is obligatory on the part of the Customs Officer to consider whether or not the goods are imported or attempted to be imported or are brought within Indian Customs waters for the purpose of being imported and whether or not the same have been imported in accordance with the provisions of the Customs Act. If he finds that the goods are imported or brought within the Indian Customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force, then, he is empowered to confiscate those goods [Section 111(d)] after following procedure laid down under the Customs Act. 25.Once the goods are confiscated in accordance with the provisions of the Customs Act, the officer adjudging it, in the case of any goods, the importation or exportation whereof, is prohibited under the Act or under any other law for the time being in force, may give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit [Section 125(1)]. It further provides that where any fine in lieu of confis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments sought to be relied upon by the petitioners do not deal with the question raised in this petition. They are not at all applicable to the facts of the present case. We, therefore, do not agree with the submission made by the petitioners. 26.The learned Counsel for the revenue rightly relied upon the Apex Court judgment in the case of D. Navinchandra and Co. (supra), wherein it was clearly laid down that entitlement of import is governed by the policy prevailing at the time of import. In the present case, import of the items being prohibited after amendment of the policy by the Public Notice dated 23-2-1988, the petitioners cannot be allowed to avoid their liability prevailing at the time of import of goods. In this view of the matter, both the authorities below have rightly held that the goods were liable to be confiscated as they were illegally imported in contravention of the provisions of the import policy of the country as such the same were rightly released on payment of redemption fine, as per the provisions of the Act. The petitioners having paid redemption fine without any protest, in our opinion, it was not open for the petitioners to challenge the same on any c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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