Case Law Details
Nishant Sanjay Ghogare Vs Commissioner of Customs (CESTAT Mumbai)
It is worth mentioning here that a person would become renowned in the field of sports after successful/ repeated participation in that field and in order to participate in the sports like shooting, availability of air gun is a basic requirement and therefore notification dated 21.11.2007 clearly distinguishes a shooter from renowned shooter and import of “Arms” from import of “other Arms” by allowing 0.177 air gun pistols for free import by shooters registered with Rifle Clubs /Association. The amended import policy of Arms and Ammunition has amended only the provisions containing the import of arms under which free import of 0.177 air guns/ pistols, which was included in the notification of 2005, has been excluded from the definition of “Arms” in 2012 notification. However, the contention of the appellant that import was made by the father of the minor son, but father is not being prosecuted for violation of customs regulation is not acceptable in view of the fact that the owner and user of such imported item is the son (minor then) and such import was made on behalf of the son by his father guardian for exclusive use by the son.
In view of the observation as made above, and in view of the fact that the redemption fine as well as penalty has already been realised by the respondent department upon exercise of power vested under Section 125 of Customs Act, 1962 on the adjudging authority, remanding back for fresh adjudication order with observation for confiscation of freely importable air gun of 0.177 by shooter on the ground that he was not a renowned shooter is irregular as the same is not in conformity with rules prescribed for such imports.
FULL TEXT OF THE CESTAT JUDGMENT
This appeal is directed against Order-in- Appeal No. MUM-CUSTM-PAX-APP-31 7/17-18 dated 22.06.2017 passed by the Commissioner of Customs (A), Mumbai III remanding the case to the first adjudicating authority i.e. Dy. Commissioner of Customs, CSI Airport, Mumbai for fresh adjudication after setting aside his order of redemption with penalty in lieu of confiscation of one air pistol valued `1,06,458/- imported for one Nishant Sanjay Ghogare (Appellant) by his father guardian Shri Sanjay Ghogare. The Order-in-Appeal has been challenged belatedly before this Tribunal upon receipt of notice dated 18.12.2017 for surrendering the gun with customs.
2. The fact of the appellant’s case is that the appellant had imported one “Pardini Air Pistol K12 Cal. 177/4.5” through authorised courier M/s. DHL Express (India) Pvt. Ltd., Mumbai. Since it is a prohibited goods specified as “Arms” and imported without valid Arms licence the said pistol was held to be liable for confiscation and the first adjudicating authority after verifying a certificate of membership issued by Precise Shooting Club, a shooter’s association located at Nashik, submitted by the appellant ordered for redemption of goods on payment of redemption fine of `25,000/- and penalty of `10,000/- in lieu of confiscation of the imported goods. The department of Revenue challenged the order before the appellate authority who passed the order as referred above remanding the case back for fresh adjudication with certain observation about confiscation and accordingly, the notice was sent to the appellant, who challenged the said order in this forum.
3. In the memorandum of appeal and during the course of hearing of the appeal, ld. Counsel for the appellant Shri H. Nadkarni, submitted that importer claimed benefit of notification 52 dated 21.11.2007 issued by the Ministry of Commerce, which allows import of air pistol by “shooters” registered with the Rifle Club or District/State /National Rifle Association. The first appellate authority failed to appreciate the fact of such lawful import and gave his finding that it can only be imported by “renowned shooters” on the recommendation of National Rifle Association of India and such a certificate was obtained by the appellant much later than passing of the adjudicating order dated 22.09.2014 by the adjudicating authority erroneously basing his stand on the decisions reported in 2004 (174) ELT 493(T), 2003 (155) ELT 423 (SC) and 1983 (13) ELT 1439(SC). The appellate authority had given his finding that air pistol is liable for absolute confiscation.
4. The respondent department has not filed any cross objection but during the course of hearing of the appeal, ld. AR Shri Manoj Kumar Mall, submitted that the Commissioner (Appeals) had rightly appreciated the rules governing import of arms in its true perspective and in elaborating the provisions existing prior to amendment introduced to import Licence (1) in chapter 93 of ITC (HS) which was prevailing between the period 2005 and 09.02.2012, he gave his finding that free import of arms is permitted to renowned shooters only and rejected the claim of the importer for which, interference by this Tribunal is uncalled for.
5. Heard both sides at length and gone through the case records and rules available for import of arms and ammunition for specified sports persons/ sports bodies as well as meticulously scrutinised the order passed by the Commissioner (Appeals) mainly in para 5 and its subsequent paras. For better appreciation of the rules and the stand taken by the Commissioner (Appeals), para 5 of the order is reproduced as under:-
“5. I find that the submissions of the respondent are relied on the provisions of DGFT Notification no. 12/2005 dated 04.07.2005. However, DGFT’s notification no. 95(RE-201 0)/2009-2014 dated 09.02.2012 has superseded the provisions of DGFT Notification no. 12/2005 dated 04.07.2005. Therefore, the relevant notification for deciding the importability of Air Pistols is DGFT’s notification no. 95(RE-201 0)/2009-2014 dated 09.02.2012 vide which amendments have been made in the Schedule I (Imports) of the ITC (HS) Classifications of Export and Import Items. I find that before amendment introduced on dated 09.02.2012, the provisions of DGFT Notification no. 12/2005 dated 04.07.2005 the import Licensing Note of Chapter 93 prescribed is that:
“Import of arms is permitted against a license to renowned shooters/rifle clubs for their own use on the recommendation of Department of Youth Affairs and Sports, Government of India, However, Import of 0.177 bore air guns and air pistols will be free for shooters registered with Rifle Clubs or District/State/National Rifle Association. Free import of 0.177 bore air guns and air pistols will also be allowed to National Rifle Association of India (NRAI) for supplying the same to the eligible State Rifle Association / Clubs and to the eligible shooters. NRAI shall be required to keep appropriate account of the imported weapons.”
After amendment the Import Licensing Note (1) of Chapter 93 has been amended as below:-
“Import of arms (including parts thereof) & ammunition is permitted freely to the following sports persons/sports bodies:
Renowned shooters (as defined in Import Licensing Note 3) on the recommendation of National Rifle Association of India (NRAI); National Rifle Association of India (NRAI) for its own use and for transfer to its State/district affiliates by due certification by Sports Authority of India; Sports Authority of India (SAI) or State Sport Authorities of concerned State by self certification and Services Sports Control Board (SSCB), Ministry of Defence. Respective recommending or certifying Bodies will maintain the required records.“
“Renowned shooter” means a persons who has participated in a National Shooting Championship in an Open Men’s Event or Open Women’s Event or Open Civilian’s Event whether through Qualifying Tournament or Wild Card Entry conducted in
accordance with the rules of the International Shooting Union, and has attained the Minimum Qualifying score prescribed by the National Rifles Association.”
6. As observed, in the pre-amended portion of rule governing import of arms and amendment made with effect from 09.02.2012, the definition of “Renowned Shooter” was not found mentioned but he borrowed the same from Note 3 of Import licensing.
7. Admittedly import was done after 2012 and his finding regarding acquirement/ designation of “Renowned Shooter” by the appellant subsequent to such import is apparent on But what I find in his order and from the appeal memo is that the Commissioner (Appeals) has followed the definition of “Arms” and had not gone into the item description contained in notification 52 (RE)/2007/2004-09 dated 21.11.2007, which was relied on by the appellant, during the appeal proceeding. Under that notification in the EXIM code 9304 0000 under the category of “Other Arms”, Air Guns among others were held to be restricted but policy condition allowed free import of only 0.177mm bore air guns and air pistols for shooters registered with Rifle Clubs or District/State/ National Rifle Association of India. By comparing the said notification with proviso (1) of the DGFT notification 12/05 dated 04.07.2005, it can very well be said that the subsequent notification of year 2007 has elaborated the distinction between the import of “other arms” like air pistol by “shooters” and permission to import “Arms” by “renowned shooters.” When the First Adjudicating authority as well as the appellate authority have accepted the certificate of importer regarding his membership/association with rifle club, instead of allowing free import of 0.177mm gun, the importer was directed and he paid redemption fine as well as penalty in lieu of confiscation, which order itself is irregular. Therefore, there is no point in confiscating the same again by rejecting the claim of the appellant on the ground that he is not a “renowned shooter” at the time of import.
8. Section 125(1) of the Customs Act, 1962 permits the officer adjudging any goods liable for confiscation to exercise his discretion to allow the owner of the goods to pay redemption fine in lieu of confiscation with penalty and take possession of the goods and it has been rightly distinguished during hearing of the case by the ld. Counsel for the appellant that the case laws referred by the Commissioner (Appeals) as indicated above have never supported absolute confiscation of prohibited goods in all circumstances. I find force in the submission made by the appellant about confirm ity of order passed by the CESTAT, Mumbai reported in 2009 (236) ELT 587 by the Hon’ble High Court of Bombay that it is within the power of adjudicating authority to offer redemption of goods, even in respect of prohibited goods, is more applicable to the case in hand.
9. It is worth mentioning here that a person would become renowned in the field of sports after successful/ repeated participation in that field and in order to participate in the sports like shooting, availability of air gun is a basic requirement and therefore notification dated 21.11.2007 clearly distinguishes a “shooter” from “renowned shooter” and import of “Arms” from import of “other Arms” by allowing 0.177 air gun pistols for free import by shooters registered with Rifle Clubs /Association. The amended import policy of Arms and Ammunition has amended only the provisions containing the import of arms under which free import of 0.177 air guns/ pistols, which was included in the notification of 2005, has been excluded from the definition of “Arms” in 2012 notification. However, the contention of the appellant that import was made by the father of the minor son, but father is not being prosecuted for violation of customs regulation is not acceptable in view of the fact that the owner and user of such imported item is the son (minor then) and such import was made on behalf of the son by his father guardian for exclusive use by the son.
10. In view of the observation as made above, and in view of the fact that the redemption fine as well as penalty has already been realised by the respondent department upon exercise of power vested under Section 125 of Customs Act, 1962 on the adjudging authority, remanding back for fresh adjudication order with observation for confiscation of freely importable air gun of 0.177 by shooter on the ground that he was not a renowned shooter is irregular as the same is not in conformity with rules prescribed for such imports. Hence order—
11. The appeal is allowed. The order passed by the Commissioner on 22.07.2017 remanding Appellant’s case for fresh adjudication is hereby set aside.
(Pronounced in Court on ………………… )
