9911796707
TMI Blog2002 (3) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... 111(d) and 111(o) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992 on the ground that the import of old and used diesel engines fall under the restricted category of imports in terms of Para 5.3 of the EXIM Policy 2001-2002 AM, and requires specific licence for such imports. After hearing them on 6-8-2001, the ld. Commissioner, vide impugned Order-in-Original ordered absolute confiscation of the impugned goods covered by the two Bills of Entry, and imposed a penalty of Rs. 3.00 lakhs in respect of B.E. No. 82, dtd. 24-5-2001 and Rs. 4.00 lakhs in respect of B.E. No. 75, dtd. 19-5-2001. (b) The issues involved herein : - (i) Whether the impugned goods viz., old and used diesel engines imported by the appellants are liable for absolute confiscation under the provisions of Sections 111(d) of the Customs Act, 1962 read with Sections 3(2) and 3(3) of the Foreign Trade (Development & Regulation) Act, 1992; (ii) Whether the Commissioner of Customs, Pune was correct in absolutely confiscating the impugned goods when admittedly 37 such consign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -conditioned Diesel Engines with or without gear box as actual users. This plea was also taken by the appellants in their reply dated 17-7-2001 to both the show cause notices. However, the ld. Commissioner has not given any finding on this submission in the impugned order. (iii) There was no mis-declaration by the appellants with reference to quantity or the value of the Diesel Engines and this is an admitted position and clearly mentioned vide Para 3 of the show cause notice which cites the Report dated 26-5-2001 of the Chartered Engineer. Therefore, the case of Shehla Enterprise - 1995 (80) E.L.T. 360 is not applicable. (iv) In similar cases where old and used engines were imported at CFS, Pune, the ld. Commissioner in his capacity as Commissioner (Appeals) has permitted clearance of the said goods on payment of redemption fine though there was mis-declaration of value, which was enhanced by the original authority. In that case he did not treat the said goods as prohibited goods nor he cited the decision of the Hon'ble Supreme Court in the case of Sheikh Mohammed Omar. (v) &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign Trade (Development & Regulation) Act 1992, reads : "Act or provide for the development and regulation of foreign trade by facilitating imports into and augmenting exports from India and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Forty third year of the Republic of India." (viii) The appellants submit that the Order passed by the ld. Commissioner absolutely confiscating the goods is contrary to the decisions of the Hon'ble Supreme Court as well as the Hon'ble Tribunal. Further the same is also not maintainable in law as it traverses beyond the show cause notice and also shows non-application of mind and visible bias singularly against the appellants. Keeping in mind the delay in clearance of the impugned goods and the demurrages and losses suffered by the appellants, the R.F. may kindly be determined. 2(c). Misc. application No. 93/02 by Revenue reiterates the submissions as regards the non-availability of appellants firm/factory in Bangalore as in Misc. application No. 60/02 dealt vide Order 53-54/02, dtd. 6-2-2002. 3. We have heard both sides and considered the matter and find :- (a) After con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Rs. 8.52 lakhs. This order was relied upon by the appellants before the adjudicator. It has not been considered and has been disposed of by the learned adjudicator, in the present case as Commissioner, in Para 4(b) of the impugned order before us, with the recorded remarks as "During the course of hearing, I informed the Advocate that the Department has not accepted the order of the Commissioner (Appeals) and appeal has been filed against that order". During the hearing before us the learned DR has submitted that Commissioner (Appeals) could not have enhanced the penalty in the case of M/s Preet International in appeal. We have considered the submissions on this issue by both sides. In the case of M/s Preet International, the very same goods, had not been treated as prohibited goods nor the decision of Sheikh Md. Omer (SC) or Shehla Enterprises was applied, by the very same adjudicator, even though, there was a finding of mis-declaration of value arrived by him. We find, the same adjudicator, had the knowledge of these cases i.e., in the case of Sheikh Md. Omar & Shehla Enterprises (where undervalued diesel engines were absolutely confiscated) he could have applied those case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave it to them to modify their own previous decisions but to leave it to them to apply to Courts or Parliament or Legislatures as the case may be to put the law beyond doubt………..". This view of binding effect of precedent treatment of their own precedents in administration of Taxing Statutes has been approved in subsequent decisions. (ii) In the case of S.S. Kothari [1987 (30) E.L.T. 156] the Calcutta High Court while examining the conduct of the Commissioner as Adjudicating, and ordering absolute confiscation, of a Motor Car imported without a licence, when the practice was to allow the import of similar cars on Redemption fine, upheld the view of the Calcutta High Court in Para 8 (extracted herein, above) in the case of Mercantile Express Co. (supra) by holding : - "15. No doubt the Court was concerned with the interpretation of the tariff item, but the principles laid down therein are equally applicable in the case like this. The issue involved here relates to the taxing statute or the fiscal enactments and the Customs Authorities are bound by their previous decisions. If the authorities have on previous occasions allowed the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s High Court and referred to as : - ".........A person may have a legitimate expectation of being treated in a certain way by an administrative authority though he has no legal right in private law to receive such treatment the legitimate expectation arises either from a representation or promise made by the authority including and implied representation or from consistent past practice." (undertaking supplied) Ref. Sunshine International & Another v. Collector of Customs, Madras [1993 (42) ECC 282 (Mad.)]. The Hon'ble Court held in this case, has also held : - "..........The Customs authority cannot take a different view, in my view, at different times, with regard, to imports of same goods as to whether to confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpressions and no such future releases would be allowed, the 'bona fide belief' on part of importers was upheld. In the present case before us, show cause notice place no reliance on the 37 other clearances made during 1998-99, on redemption fines at CFS, Pune. Nor was any 'Public Notice' having been issued by CFS, Pune authorities cautioning and regarding, the so called deliberate contravention of the Import Policy being indulged by the importers of Diesel Engines, who were getting away and the need to purge such activity was produced. There is therefore much force in the Advocates plea before us, that the Commissioner has travelled beyond the show cause notice, therefore the order of confiscation be set aside. We would consider that to be so in this count. The plea made, of importers herein having made due enquiries and learning of the procedure at CFS, Pune and no Public notice having been issued, induce us to follow Shah Tools Bearing Co. case (supra) where such requirement is mandated to set aside this order of Absolute Confiscation. (g) The appellants have relied upon Order-in-Original passed by the same Commissioner, Pune in the case of "Poppy Seeds" an item, import of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey being prohibited, the first limb of Section 125, uses the word 'may' in the case of prohibited goods and that should be read in the facts of this case, as to indicate the grant of redemption fine and not withholding of the same, as is being interpreted. (i) The Central Board of Excise & Customs vide Circular No. 495/5/92-Cus. VI, dated 10-5-93, examining the EXIM Policy 1992-97 observed that gold does not figure in the List of "prohibited item" in Part-I of Negative List of Imports, clarified that the word "prohibited goods" occurring in the Customs Act, 1962 would include all the parts of the Negative List of EXIM Policy unless the conditions mentioned for such imports have been complied. Since gold figured at S. No. 4 of the Negative List it was considered to be prohibited item liable for action under Section 125. However, by subsequent instructions later on, considering the import liberalization policies, directions were issued, not to order absolute confiscations of Gold, in cases where the passengers had even cleared the "Green Channel", but were otherwise eligible for the import and had enough foreign exchange to cover the duty. The approach in the two Acts viz, "Imports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown thereunder as 'FREE', and it is only under Paras of Vol. II import of second hand item mentioned therein are allowed without a licence and the same Vol. II, also provides for import of second hand capital goods licence free; then it was, therefore imperative for the Commissioner to have come to a clear finding as to how the goods claimed as 'Actual User' in this case were "restricted" by the policy. The findings in the impugned order are :- "4. I have carefully gone through the records of the case and the oral as well as written submissions of the importer. The impugned goods are old and used diesel engines which are prime movers and are not covered by the definition of "capital goods" as given in sub-para 3.10 read with sub-para 3.2 of the EXIM Policy, 1997-2002. As per the definition, the term "capital goods" means any "plant, machinery, equipment, or accessory required for manufacture or production, either directly or indirectly, of goods or for rendering services..........". The definition then goes on to give certain illustrations which include, inter alia, 'power generation sets' but not 'diesel engines'. It is not the, claim of the importer that the imported diesel eng ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
