1990 (5) TMI 155 - AT - Customs

Tribunal upholds confiscation of imported goods & penalties for contract non-compliance.

The Tribunal upheld the Collector's decision to confiscate imported goods and impose a redemption fine due to the absence of a firm contract as per the ... Import - OGL Issues Involved:1. Confiscation of imported goods and imposition of redemption fine.2. Imposition of personal penalty.3. Assessment of goods without the benefit of Notification No. 250/88 dated 16th September, 1988.4. Determination of whether there was a 'firm contract' as per the Import Policy.Issue-wise Detailed Analysis:1. Confiscation of Imported Goods and Imposition of Redemption Fine:The Collector confiscated the goods imported by the appellants, giving them an option to redeem the goods upon payment of a redemption fine. The appellants had imported a 5-layer Co. extrusion line valued at Rs. 2,35,35,279/-, which was listed under the OGL (Open General License) list of the Import Policy for 1985-88. The appellants argued that they had entered into a firm contract with a German firm on 18th December 1986, and registered this contract with the State Bank of India on 27th February 1988. However, the Collector found that the contract was not firm as there were multiple proforma invoices with varying terms and conditions, indicating that the contract was not binding until the acceptance of the order was confirmed. Consequently, the goods were deemed to be imported in violation of the import policy, leading to their confiscation.2. Imposition of Personal Penalty:A personal penalty of Rs. 1 lakh was imposed on the appellants. The Collector's decision was based on the finding that the appellants did not comply with the conditions of the import policy, specifically the requirement of entering into a firm contract by the stipulated date. The appellants contended that they had met the conditions by entering into a contract and registering it with the bank before the deadline. However, the Collector's interpretation of the contract's terms led to the conclusion that the contract was not firm, thereby justifying the penalty.3. Assessment of Goods Without the Benefit of Notification No. 250/88:The appellants claimed that they were entitled to the benefit of Notification No. 250/88, which reduced the duty rate to 35%. They argued that the rate of duty applicable should be the rate prevailing on the date the goods were available for clearance. However, the Collector and the Tribunal held that the relevant date for determining the rate of duty was the date on which the bill of entry was filed for home consumption, as per Section 15(1)(a) of the Customs Act. Since the bill of entry was filed on 7th September 1988, the applicable duty rate was 90%, and the benefit of the subsequent notification was not admissible.4. Determination of Whether There Was a 'Firm Contract':The core issue was whether the contract dated 18th December 1986 constituted a 'firm contract' under the import policy. The Tribunal examined the terms of the contract and found that there were significant alterations in the essential conditions, such as the price and the terms of payment. The initial contract price was DM 2,947,590, but the registered contract indicated a different price of DM 3,083,120. Additionally, the terms of payment required the opening of an irrevocable letter of credit by a specified date, which was not met. The Tribunal concluded that these alterations meant the contract was not firm, as it was subject to change and not binding. Consequently, the appellants were not entitled to the benefit of the OGL.Separate Judgments Delivered by the Judges:All three members of the Tribunal agreed with the findings and conclusions, although they provided additional reasoning. Miss S.V. Maruthi emphasized that the contract's terms were altered, making it non-firm. D.C. Mandal highlighted the amendments to the contract terms, reinforcing the conclusion that the contract was not firm. V.P. Gulati concurred with the findings and the reasoning provided by the other members.Conclusion:The Tribunal upheld the Collector's order on all counts. The appeal was dismissed, confirming the confiscation of goods, the imposition of a personal penalty, and the assessment of duty without the benefit of Notification No. 250/88. The Tribunal's decision was based on the finding that there was no firm contract as required by the import policy.