TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 1360
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....with total declared value of Rs. 1,72,87,120/- under Section 113(d) of the Customs Act, 1962. However, since the goods are not available for physical confiscation, I refrain from redeeming the goods. iv. I impose a penalty of Rs. 10,00,000/- (Rupees ten lakhs only) on M/s. V.V. Minerals, 17-C, Keeraikaranthattu, Tisayanvilai - 627657 under Section 114(i) of the Customs Act, 1962. I refrain from imposing any penalty under Section 114AA of the Customs Act on the notice. v. I confirm the demand of Rs. 20,884/- (Rupees twenty thousand eight hundred and eighty four only) incurred towards the testing charges of the export goods from the notice under Section 145 of the Customs Act, 1962. 2.1. Briefly the facts of the present case are that the appellant is a registered partnership firm carrying on the business of separation and processing of beach sand minerals for export and they are Star Trading House and they have processing units at Kanyakumari, Tirunelveli and Tuticorin Districts in Tamil Nadu and at Srikakulam District in Andhra Pradesh. They have purchased legally mined minerals from the State of Andhra Pradesh under the licences granted under MMDR Act, 1957, lawfully transport....
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....ready to Tamil Nadu processing unit of the appellant with all permissions and transport permits issued by Director of Mines, Andhra Pradesh and local collector's permits is not required. Thereafter, Assistant Commissioner vide letter dt. 03/01/2017 required the appellant to produce certificate / documents certifying the legal source of beach sand minerals and transport permits from the concerned District Collector under Section 50 of the Customs Act, 1962. Thereafter the appellant filed a Writ Petition (Civil) No.650/2017 before the High Court of Kerala on 06/01/2017 to quash the Trade Facility No.13/2016 issued by the Commissioner of Customs vide their letter dt. 22/12/2016. The Writ Petition was dismissed by the High court of Kerala vide judgment dt. 26/07/2018 holding that the petitioner is at liberty to export his goods as soon as he is able to satisfy the authorities on the legal source of minerals. In the meantime, DGFT issued Notification No.26/205-2020 dt. 21/08/2018 canalising the export of Beach Sand Minerals through M/s. Indian Rare Earths Limited. As a result of this notification, the appellant could not export the impugned Garnet sand and thereafter the appellant vide ....
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....e oral submissions made by the Senior Manager of the company on 27/07/2019 and passed the impugned order on the same day and ordered absolute confiscation of the impugned goods along with penalty. Aggrieved by the said order, the appellant is before this Tribunal. 4. Heard both sides and perused the records. 5.1. Learned counsel for the appellant filed the written submissions and has argued that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the impugned order has been passed in total violation of principles of natural justice. According to his submissions, the show-cause notice was issued on 26/07/2019 and in the show-cause notice 30 days period has been given and appellant has been called up to show cause within 30 days of receipt of it as to why the goods sought to be exported should not be confiscated and penalty should not be imposed. He further submitted that without taking the reply to the show-cause notice, the Commissioner passed the impugned order confiscating absolutely the impugned goods in complete violation of the principles of natural justice. He further submitt....
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....d by the Commissioner in the impugned order. The learned counsel further submitted that Trade Facility No.13/2016 dt. 22/12/2016 of the Cochin Custom House was issued after the impugned goods were transported to Cochin and were exported / about to be exported. The said Trade Facility circular was not in existence at that time and therefore the said goods did not require the legally mined certificate from the concerned District Collector as prescribed in the said circular. He submitted that it is a settled law that 'law prevalent at relevant time to be applied' and it cannot be applied retrospectively. For this submission, he relied upon the decision in the case of National Engineering Industries Vs. Commissioner [2008(227) ELT A166 (SC)] wherein the Apex Court held that the law prevalent at relevant time is applicable. He further submitted that the Commissioner in para 31 of the impugned order has admitted that appellants have filed various documents in proof of the origin of the cargo of Garnet but still observed that the exporter has failed to produce any transport permit for transport of goods from their 100% EOU unit at Tirunelveli to Cochin. To counter this finding of the Comm....
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.... transit permits are not notified by the Central Government under Section 11(3) of the Customs Act. He also submitted that the impugned order is self-contradictory because in the order portion, the Commissioner has observed that he refrained from redeeming the Garnet sand already exported under 16 shipping bills, on the ground that they are not physically available for confiscation whereas the Commissioner has absolutely confiscated the Garnet sand physically available in the Cochin port covered by 14 shipping bills without giving the redemption option. He further relied upon the following decisions:- i. Yakub Ibrahim Yusuf Vs. CC, Mumbai [2011(263) ELT 685 (Tri. Mum.)] ii. CC(Preventive) Vs. Uma Shankar Verma [2000(120) ELT 322 (Cal.)] wherein it has been held that if the goods are not prohibited, then the same are liable to be released on payment of redemption fine and should not be absolutely confiscated. 6. On the other hand, the learned AR defended the impugned order and submitted that the impugned goods were found to be prohibited goods on account of the restriction imposed by the Trade Facility circular issued by the Commissioner of Customs as well as instructions issu....
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....ng of the written submissions has been categorically denied by the counsel for the appellant. it appears strange as to how the hearing on 27/07/2019 was considered by the Commissioner to be a proper opportunity of hearing when the Commissioner himself has given 30 days time to file reply to the show-cause notice. In fact, the Commissioner has wrongly observed in the impugned order that written submissions have been filed whereas no written submission have been filed on 27/07/2019 on which the impugned order itself has been passed. It appears that the Commissioner has no regard for the principles of natural justice. The opportunity of proper hearing has to be accorded to the appellant against whom the order of absolute confiscate has been passed on the next day of the issue of show-cause notice and that too without taking proper reply to the show-cause notice and without affording proper opportunity of hearing to the appellant. The manner and the speed with which the impugned order has been passed by the Commissioner without affording adequate opportunity to the appellant to file the reply to the show-cause notice is in complete violation of the principles of natural justice. 7.2. ....
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....ely confiscated on the basis of instructions issued by the Tamil Nadu Government as well as Trade Facility circular issued by the Customs House , Cochin and that too after the filing the shipping bills. 7.3. As far as absolute confiscation of the impugned goods is concerned, I find that as per the policy prevalent during the relevant time, the natural garnet was freely exportable and importable without any restriction. Further I find that the DGFT has issued a Notification No.26/2015-2020 dt. 21/08/2018 canalising the export of beach sand minerals through M/s. Indian Rare Earths Ltd. and the appellants are now legally not authorized to export the said goods. Once the goods are found to be not prohibited, then it is mandatory for the Customs authorities to release the same on payment of redemption fine if there is a violation of any conditions prescribed by any other law in force. Whereas in the present case, according to my considered view, appellant has not violated the provisions of Customs Act and has purchased the legally mined Garnet from N/s. Transworld Garnet India (P) Ltd. Further I rely upo the ratio of the decision in the case of CC Vs. Uma Shankar Verma wherein the Hon'....