TaxTMI 
TaxTMI 
2014 (8) TMI 696
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....etition came up, the Court was informed on 10 July 2014 that the revenue intended to file an appeal against the order of the Tribunal. The appeal having been filed, both the appeal and the writ petition have been heard together. Since the writ petition seeks to enforce the order of the Tribunal which has been questioned by the Revenue in appeal, it would be convenient to deal with the appeal in the first instance. Though, several questions of law have been formulated by the revenue, the following question has been pressed at the hearing:- "3. Whether the Tribunal has committed an error of law in accepting and upholding the clearance for home consumption allowed by the Commissioner (Appeal) of goods otherwise prohibited for clearance for home consumption in absence of valid BIS certificate with reference to the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 20092, read with 2.2 of the Foreign Trade Policy and General Note 2A of the import policy regarding mandatory compliance with regard to BIS certification as per Schedule III to the import policy." The assessee filed a Bill of Entry on 5 June 2013 for the clearance of goods which were declared ....
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....rket through their authorised dealers. The assessee relied upon three letters of certain dealers. The Commissioner (Appeals), however, held that the assessee had not submitted valid documents to prove that it had been authorised by the OEM to import for the purpose of selling in the market in order to avail of the exemption. However, the Commissioner (Appeals) held that it was harsh on the part of the Additional Commissioner to impose a redemption fine of Rs. 8 lacs with a condition of re-export. Finding that the assessee was entitled to redemption on payment of an appropriate redemption fine, the condition of re-export was deleted. This order was challenged by the revenue in an appeal before the CESTAT. The Tribunal by its order dated 16 May 2014 has confirmed the order of the Commissioner (Appeals). Learned counsel appearing on behalf of the revenue submits that the goods in question were prohibited goods within the meaning of Section 2(33) of the Customs Act and the Additional Commissioner had furnished valid grounds for imposing a condition of re-export, particularly since only one part of the consignment of Nexon tyres had a BIS certification but which had, in any event,....
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....ds or the person referred to in sub- section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." Section 2(33) of the Customs Act defines the expression 'prohibited goods' as follows:- "(33) "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with." Hence, the definition of the expression 'prohibited goods' covers any goods where the import or export is subject to a prohibition under the Customs Act or any other law for the time being in force. However, the definition does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. Section 125 (1) of the Customs Act confers a discretion upon the Adjudicating Officer to allow an option for the payment of a redemption fine in lieu of confiscation where it is found that the importation or exportation is prohibited under ....
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....s entitled to redemption on the payment of an appropriate redemption fine. This was clearly not a proper interpretation of Section 125 of the Customs Act. That apart, the Commissioner (Appeals) has adduced the following reasons for allowing the redemption of goods; "Further the imposition of the penalty is resorted to make it prohibitively expensive for importer so that he does not try it again in the future. In the present case, I find that R. F. and penalty have been imposed but the imported goods have not been allowed to be released tin the domestic market for reasons not explained in the impugned order. It has to be acknowledged that the imported goods have been accompanied by a certificate of the origin, which has been issued by an agency, which is authorised. The said certificate certify the origin of the imported goods from their respective countries. Some of the brands of the imported goods are renowned internationally. Therefore the imported goods cannot be treated as of substandard quality. I, therefore, find that the adjudicating authority has travelled a bit too far in the matter & his order regarding re-export order of imported goods is arbitrary." This reason....