2012 (3) TMI 42 - AT - Customs

Penalty upheld, confiscation restored for rough diamond import without certificate. Compliance emphasized.

The Tribunal upheld the penalty reversal but restored the confiscation order for rough diamonds imported without a Kimberly Process Certificate. The ... Contravention of import policy in respect of rough diamond – absolute confiscation of goods held – failure of assessee to furnish Kimberly Process certificate in respect of import of said goods - seeking permission for re-export of goods and waiver of penalty – Held that:- No evidence of wilful attempt by the assessee to contravene the rules is found, therefore there is no reason to impose any penalty. Hence, order of the Commissioner (Appeals) of setting aside the penalty is upheld.Further, Respondent is not making a clear submission as to why he wants the goods to be re-exported. He has not made any payment towards the goods. Thus, permission for re-export of goods is denied and order of the original adjudicating authority for absolute confiscation of the goods is restored – Decided partly in favor of assessee. Issues: Import of rough diamond without required certificate, imposition of penalty under Customs Act, appeal against penalty and confiscation, re-export of goods, wilful import of goods, Multi National Agreements and Kimberly Process Certificate.Analysis:1. Import of rough diamond without required certificate: The case involved a consignment of rough diamond received without a Kimberly Process Certificate, as mandated by the import policy. The consignee was unable to produce the required certificate within the stipulated time frame, leading to the goods being subject to confiscation and a penalty of Rs. One lakh imposed under Section 112 of the Customs Act.2. Imposition of penalty under Customs Act and appeal against penalty: The Respondents contended that they were not at fault as they believed the consignor possessed the necessary certificate. They cooperated with authorities upon realizing the absence of the certificate, did not engage in mis-declaration, and did not attempt to smuggle the goods. The Commissioner (Appeals) allowed re-export of the goods and set aside the penalty. However, Revenue appealed against this decision, arguing that the Kimberly Process Certificate requirement is crucial under Multi National Agreements to prevent money laundering.3. Re-export of goods and wilful import: The Revenue insisted on the absolute confiscation of the goods, citing concerns about the origin of the diamond and the necessity to uphold international agreements. They contended that the Respondents wilfully imported the goods without the required certificate, justifying the penalty. The Tribunal considered both sides' arguments and found no evidence of wilful violation by the Respondents, leading to the decision to uphold the Commissioner (Appeals) order regarding the penalty.4. Multi National Agreements and Kimberly Process Certificate: The Tribunal emphasized the importance of adhering to the Kimberly Process Certificate requirements agreed upon under Multi National Agreements. While acknowledging the seriousness of the issue, the Tribunal found no deliberate wrongdoing on the part of the Respondents. The decision to partially allow the appeal included upholding the penalty reversal but restoring the original adjudicating authority's order for the absolute confiscation of the goods due to the failure to provide a valid reason for re-export.In conclusion, the judgment highlighted the significance of complying with international agreements regarding the import of rough diamonds, the lack of evidence supporting wilful violation by the Respondents, and the decision to uphold the penalty reversal while reinstating the confiscation order for the goods.