TaxTMI 
TaxTMI 
2023 (6) TMI 548
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....ong with the aforesaid Applications. 2.1. Briefly stated the facts of the case are that the appellant had filed a Bill of Entry No. 78752280 on 15th March 2022 for clearance of the imported good viz. industrial composite solvent by declaring its classification under CTH 38140010 which corresponds to the Heading 'organic solvents and thinners, not elsewhere specified or included'. The said goods were imported from the overseas supplier M/s. Encore Arabia Group for General Trading and Contracting Co. W.L.L, Kuwait declaring its transaction value as Rs.15,26,931/- under invoice number 044-112021. The packing list, certification of origin and certificate of analysis dated 31.01.2022 were filed with the said Bill of Entry. 2.2. Samples were drawn and tested in the in the Customs laboratory by the Department and it was orally informed to the Appellant through their CHA that the goods fall under the category of kerosene. The appellant through their letter dated 29th of March 2022 requested to allow for re-testing of the samples and accordingly sent to the laboratory of BPCL, Cochin Refineries. Later, the clearing agent informed that the report furnished by BPCL was matching with the par....
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....from today; iv. If such an appeal is filed within ten days from today, the appellate authority shall consider the appeal and dispose of the same in accordance with law, within a period of one month from the date of receipt of a certified copy of this judgment, after affording to the petitioner an opportunity of being heard. 2.4. Pursuant to the High Court's order, the appellant filed an appeal before the learned Commissioner(Appeals), who in turn, upheld the order of the adjudicating authority and rejected their appeal. 2.5. The Department, however, has not implemented the observation of the Hon'ble High Court by issuing copies of all test reports and drawal of sample by the appellant to establish that the goods in question are not prohibited goods. 2.6. Against the order of the learned Commissioner(Appeals), the appellant approached this Tribunal on 17/01/2023 by filing an appeal under Section 129A of the Customs Act,1944 and also filed two miscellaneous applications referred as above. 3. Assailing the impugned order, the learned advocate for the appellant submits that they had imported 24.320M.T. of "industrial composite solvent" from overseas supplier M/s Encore Arabia Gro....
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....se or sale, nor the present consignment was also imported with any such intention. The industrial solvent was imported for the purpose of its use in their factory for manufacture of paints. Therefore, re-export of the goods, being not a viable option, they would prefer to release the same on payment of fine and penalty. 3.5. The learned advocate has submitted that their bona fide approach is evident from the fact that at the time of exporting the goods by the overseas supplier, it was tested at the country of export and the test report enclosed with the invoice indicated that it was industrial composite solvent. After import of the said goods when re-tested, by the Department found it to be Kerosene, but not industrial solvent; the import of which is allowed through canalised agencies. He has submitted that assuming without admitting that the imported goods is kerosene when tested in India, even than the said goods cannot be considered as prohibited goods being not imported in breach of the restriction of its import through canalising agencies. It is his contention that at best it could be treated as restricted one. He has also submitted that there is no evidence to the effect tha....
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....ot permitted, and the excess quantity so imported, if allowed to be used in India, it would have adversely affected the interest of Indian farmers, thus there is a conflict of private interest to public interest, hence, the Supreme Court upheld the condition of re-export on payment of fine. No such circumstances exist in the present case, as the goods were imported by the appellant was industrial composite solvent to be used by them in their factory in the manufacture of paints. Also, the judgement of Madras High Court in Chennai Marine Trading's case is not applicable as from the very beginning the importers were fully aware that what imported was R-22 Gas, a prohibited item, and mis-declared it as HCFC R-401A refrigerant gas only for the purpose of import admitted by the Director of the Appellant. 6. Heard both sides and perused records. 7. In the light of the above pleadings, the limited issue for determination is: whether in the facts and circumstances of the case, direction for absolute confiscation of the goods and allowing redemption of the same solely for the purpose of re-export on payment of fine and penalty is justified and sustainable?. 8. The goods imported by the a....
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....han acceptance of release for its use in their factory on payment of fine and penalty. In this backdrop, the arguments advanced by both sides were analysed. 12. We find that the appellants are engaged in the manufacture of paints for which they import industrial composite solvent, a raw material, use it captively in the manufacture of paints. They have been importing the same goods earlier also, declaring it under the same chapter sub-heading 38140010 of Customs Tariff Act, 1975 on the basis of invoice, chemical analysis report supplied along with goods by overseas supplier; the Customs Department also assessed it accordingly accepting the same and no objection was raised. In relation to the present consignment, except re-testing the samples, the reports though disputed by the Appellant, no further investigation was carried out, nor any statement of the appellant was recorded, whereby it could be inferred that the appellant had knowingly imported Kerosene but mis-declared it as industrial solvent. 13. If the re-test reports are accepted to be correct, the only breach of condition on the part of the appellant would be that they did not import the goods through canalised agencies. ....
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....of farmers. This factor alone is sufficient to find the direction in which discretion ought to be exercised in these matters. When personal business interests of importers clash with public interest, the former has to, obviously, give way to the latter. Further, not a lengthy discussion is required to say that, if excessive improperly imported peas/pulses are allowed to enter the country's market, the entire purpose of the notifications would be defeated. The discretion in the cases of present nature, involving far-reaching impact on national economy, cannot be exercised only with reference to the hardship suggested by the importers, who had made such improper imports only for personal gains. The imports in question suffer from the vices of breach of law as also lack of bona fide and the only proper exercise of discretion would be of absolute confiscation and ensuring that these tainted goods do not enter Indian markets. Imposition of penalty on such importers; and rather heavier penalty on those who have been able to get some part of goods released is, obviously, warranted." 15. Similarly, the judgment of Hon'ble Madras High Court in the case of Chennai Marine Trading (P) Ltd. (s....