Nakshatra Impex Vs Commissioner of Customs (Port) (CESTAT Kolkata)
CESTAT Kolkata granted redemption of prohibited goods as against absolute confiscation as importer was not aware about the amendment in policy and importantly policy was amended when the shipment was in process.
Facts- Importers, imported Mosquito swatter/bat in three (3) consignments, stuffed in three containers at a declared unit price of USD 0.34 per piece which works out to Rs.25.41 per piece. The goods were shipped on 26.04.2021 against three (3) different Bills of Lading from China all dated: 26.04.2021. BOE were filed on 18.05.2021 for clearance of the mosquito swatter/bat UTH (HS code) 85167920 claiming clearance under Open General License (OGL) since mosquito swatter/bat was freely importable as per Foreign Trade Policy in force.
Director General of Foreign Trade (DGFT) issued vide Notification No. 02/2015-20, New Delhi dated: 26.04.2021, amended the import policy and incorporated a policy condition under HS code 85167920 and 85167990 of chapter-85 of ITC (HS) 2017, schedule-I (Import Policy). The effect of the notification was, mosquito killer racket under HS code 85167920 and 85167990 in the import policy was revised from free to prohibited, if CIF value is below Rs. 121/- per racket.
Accordingly, the goods were detained for adjudication proceedings by the lower Authority. It is the case of the Appellants that the goods were delivered to the shipping agent by the overseas supplier for shipment to India on 21.04.2021. However after the final call on board on 26.04.2021 the Bills of Lading were issued. Since the placement of the order for import of the goods were placed much earlier and goods were out of control of the overseas supplier on 26.04.2021, incidentally on which date the DGFT Notification 02/201520 dated: 26.04.2021 was issued.
However, it was held by the adjudicating authority that, from the DGFT notification it is clear that the prohibition came in force form 26.04.2021 and the Bill of Lading date is also 26.04.2021, so there is no doubt that on the import date (i.e. Bill of Lading date) the subject goods is prohibited as per DGFT notification no. 02/2015-20 dated: 26.04.2021.
Conclusion- Held that absolute confiscation of goods by Collector without question of redemption on payment of fine although having discretion but omitted to consider such a discretion available with him and remanded the matter to Collector for consideration of an exercise of discretion for imposition of Redemption fine. Besides, since the policy was amended when the shipment was in process their mala fide intention cannot be proved without any additional evidence to invoke penal clause under section 112 of the Customs Act 1962.
FULL TEXT OF THE CESTAT KOLKATA ORDER
Appeal No.C/75508/2022, C/75510/2022 & C/75511/2022
