2006 (3) TMI 499 - AT - Customs

Tribunal Invalidates Customs Act Orders

The Tribunal set aside the orders of confiscation and penalty under Sections 111(d) and 111(m) of the Customs Act, 1962, emphasizing strict interpretation ... Confiscation - EXIM - Advance licence Issues Involved:1. Validity of the import under the advance licenses.2. Applicability of Section 111(m) of the Customs Act, 1962.3. Applicability of Section 111(d) of the Customs Act, 1962.4. Validity of the penalty imposed.Detailed Analysis:1. Validity of the Import under the Advance Licenses:The appellants imported mild steel sheets/plates under four advance licenses and discharged the export obligation in full, claiming exemption from Customs duty under Notification No. 36/97-Cus. dated 11-4-1997. The Customs department disputed that the imports were not within the validity period of the licenses. The appellants paid the Customs duty and cleared the goods but contested the confiscation and penalty orders.2. Applicability of Section 111(m) of the Customs Act, 1962:The Customs department argued that the imports violated Section 111(m) due to incorrect dates on the Bills of Lading. However, the Tribunal found no mis-declaration of the goods' description, value, or other particulars in the Bill of Entry. Section 111(m) pertains to goods not corresponding to the particulars mentioned in the Bill of Entry. The Tribunal noted that incorrect mention of the Bill of Lading date does not fall under this provision. Citing previous judgments, the Tribunal emphasized that Section 111(m) should be strictly construed and does not cover incorrect dates on the Bill of Lading.3. Applicability of Section 111(d) of the Customs Act, 1962:The Commissioner concluded that the Bills of Lading should be dated around 17-9-1999, based on vessel movement and loading dates. However, the Tribunal found no express finding that the goods were not handed over to the shipper by 31st July 1999. The Tribunal referred to the Indian Carriage of Goods Act, 1925, which mandates issuing a Bill of Lading upon receiving goods. The Tribunal also cited Para 15.14 of the Handbook of Procedures, which considers the date on the Bill of Lading for import purposes. The Tribunal concluded that the absence of a finding that the goods were not handed over by 31st July 1999 makes Section 111(d) inapplicable.4. Validity of the Penalty Imposed:The Tribunal noted that the restriction imposed by Notification No. 34(RE9S)/97-02 expired without a saving clause. According to the Supreme Court's decision in Kolhapur Cane Sugars, reliance on an expired notification without a saving clause is invalid. The Tribunal held that the order of confiscation and penalty under Section 111(d) and 111(m) is not valid. Consequently, the penalty imposed on the importer is also set aside.Conclusion:The Tribunal set aside the orders of confiscation and penalty under Sections 111(d) and 111(m) of the Customs Act, 1962, and disposed of the appeal. The findings emphasized strict interpretation of penal provisions and the invalidity of actions based on expired notifications. The Tribunal did not contest the duty liability as it was not under dispute.