TaxTMI 
TaxTMI 
2024 (12) TMI 965
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....res" for clearance under that "FIRST CHECK". On the basis of specific intelligence, the officers of DRI examined the goods under Panchnama dated 31.03.2019 and 04.05.2019. On examination, number of tyres found was 1642 instead of 1044 as declared in the B/E No.2585131 dated 26.03.2019. Similarly on examination of the goods covered under B/E No.2624519 dated 29.03.2019, as against the declared 650 tyres, the total number of 787 tyres were found. Thus, total 2429 (1642 + 787) tyres were imported as against the declared quantity of 1694 tyres (1044 + 650). The goods were also found to be mis-declared as they were not "Off the Road Tyres" as declared under the import documents and were without any BIS markings. 3. The statement of Shri Suryajeet Singh, Proprietor of the appellant company was recorded under Section 108 of the Act on 03.04.2019, wherein he, inter-alia, stated that he obtained IEC in the name of M/s.Sai Enterprises on behest of Shri Navin Kumar; that he opened a current bank account in Punjab National Bank, Milavali Branch, Gwalior for the said firm; that he provided the details of online login id and password to Shri Navin Kumar; that the said current account was operat....
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....dated 13.02.2020 was issued to the proprietor of the appellant company along with 3 co-noticees, Shri Navin Kumar, Proprietor of M/s. Auto Mart India, Shri Santosh Kumar Gupta, G-Card Holder and Shri R.K. Sharma, owner of M/s.Sharma Enterprises. On adjudication, the order-in-original dated 16.06.2020 was passed as under:- "(i) The 3066 new tyres of reputed brands found without BIS norms and markings having value of Rs.1,92,20,387/- imported vide Bills of Entry No.2585131 dated 26.03.2019, 2624519 dated 29.03.2019 and 3104162 dated 04.05.2019 are ordered to be confiscated absolutely under the provisions of Section 111(d),111(f), 111(l) and 111(m) of the Customs Act, 1962. (ii) I impose a penalty of Rs.10,00,000/- (Rupees Ten Lakhs only) upon the Noticee No.1 under the provisions of Section 112(a)(i) of the Customs Act, 1962. (iii) I impose a penalty of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) upon the Noticee No.1 under the provisions of Section 114AA of the Customs Act, 1962. (iv) I impose a penalty of Rs.10,00,000/- (Rupees Ten Lakhs only) upon the Noticee No.2 under the provisions of Section 112(b)(i) AA of the Customs Act, 1962. (v) I impose a penalty of Rs.25,00....
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....btaining BIS. This exception was carved out because the manufacturers of reputed brands maintain standards much higher than what are required under BIS and hence, they were granted an exemption in this regard. A bare reading of the Chartered Engineer Report indicate that the tyres in question are of very high standard quality being of either European, American or Japanese manufacturing standard which are much more stringent than the Indian BIS Standard and therefore, there is no question of any danger and life and safety of the passenger on road. 9. Referring to the various decisions, the submission was that there was fine line of difference between "Restricted Goods Make" and "Prohibited Goods". The alternate submission made is that even if it is assumed that the goods in question were prohibited within the meaning of Section 2(33) of the Act, still Section 125 is applicable to prohibited goods and redemption fine can be imposed for release of the imported goods. It is submitted that Section 125 of the Act gives discretion to the authorities to impose redemption fine and gives an option to the person to pay the same in lieu of confiscation. 10. Accordingly, the prayer made was t....
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....imported by the appellant were not having the mandatory BIS certification. Therefore, the first point for our consideration is whether any prohibition is imposed under any other law for the time being in force. Chapter 1(a) of CTA, 1975 provides that all goods imported shall also be subjected to domestic law, rules, orders, regulations, technical specifications, environmental and safety laws, as applicable to domestically produced goods. Section 17 of the BIS Act prohibits the manufacture, import, distribute, sell, hire, lease, store or exhibit for sale any goods or articles without standard mark. Section 17(1) of BIS Act reads as under:- "17. Prohibition to manufacture, sell, etc., certain goods without Standard Mark (1) No person shall manufacture, import, distribute, sell, hire, lease, store or exhibit for sale any such goods, article, process, system or service under sub-section (1) of section 16- (a) without a Standard Mark, except under a valid licence; or (b) notwithstanding that he has been granted a license, apply a Standard Mark, unless such goods, article, process, system or service conforms to the relevant standard or prescribed essential requirements." 13. Sec....
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....ndards for pneumatic tyres (which include pneumatic tubes)with the objective of ensuring safety of human lives and vehicles and also availability of quality products, whether domestic or imported, to the consumers. Adherence to the quality standards is indicated by a BIS Standard Mark. However, specified pneumatic tyres that are not domestically manufactured and are therefore imported by Original Equipment Manufacturers (OEMs) are exempt from this stipulation. Accordingly, the Department of Industrial Policy and Promotion, has vide OMs dated 13.05.2011 and 08.09.2011 identified total 316 pneumatic tyres that are exempt. This list is available at http://www.dipp.nic.in. Hence, other than these exempted pneumatic tyres no person shall by himself or through any person on his behalf, manufacture, import, store for sale, sell or distribute pneumatic tyres (which include pneumatic tubes) that do not conform to the specified standards and that do not bear the BIS Standard Mark." 15. The above legal provisions and the departmental communication in that regard makes it emphatically clear that pneumatic tyres imported by the appellant were required to bear the BIS markings and in absence th....
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....judicating Authority to obtain a test report from the Central Institute of Road Transport or some other laboratories whether the tyres are of acceptable quality so as to allow them for home consumption or else to be directed to re-export. The final order by the learned Single Member has been basically passed on the facts of that case, however, the principles of law has been enumerated by the learned Division Bench of the High Court of Allahabad, where the Court emphasized on the BIS markings in terms of the 2009 Order and the circular issued in that regard. The same are binding on us and in light thereof, we hold that the goods (tyres) imported by the appellant without any BIS markings being in violation of the statutory provisions are not permissible to be imported and hence they are liable for confiscation under Section 111 of the Act. Prohibited Goods 19. We now come to the issue whether the tyres imported by the appellant fall under the category of "prohibited goods as defined under Section 2(33) of the Act, which reads as under:- "Section 2(33) of the Customs Act, 1962-"prohibited goods" means any goods the import or export of which is subject to any prohibition under this....
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....Any prohibition" means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (I) of Schedule 1, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues." (Emphasis laid) Similarly, in Rajgrow Impex (supra), the Delhi High Court rejected the contention that the goods fall in restricted category and observed that, "if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject' to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description." 21. We do not wish to deal further into the concept of the "prohibited goods", which stands settled over the period. In the facts of the present case, it is an admitted position that the goods imported were not having the BIS markings, whereas the legal position, as....
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....ount in the name of his firm though the actual importer was Shri Navin Kumar (Noticee No.2). Though the appellant was aware of mis-declaration made in the B/Es and the prohibited nature of the goods, yet he signed false declaration and filed B/Es for the purposes of making the profit of Rs.75,000/- to Rs.1,00,000/- per container from the Noticee No.2. He has further tried to divert the issue of mis-declared quantity of tyres by producing a forged email. Relying on the principle that question of mens-rea is not relevant for liability to confiscation and penalty, the learned Authorised Representative has referred to the decision of the Apex Court in Pine Chemical Suppliers Vs. Collector of Customs [1993 (67) ELT 25 (SC)]. The Tribunal also in Commissioner of Customs, New Delhi Vs. Art Alive [2014(314) ELT 632 (Tri.-Delhi)] has held that in case of mis-declaration, 'mens rea' is not a pre-requisite for confiscation and imposition of penalty under the Customs Act. We have no hesitation in accepting this settled principle. Considering the conduct of the appellant, we do not find any error in the orders of the Authorities below in confirming the penalty on the appellant under the p....
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....elease the goods on payment of redemption fine. The Commissioner (Appeals) also noted that the goods imported without BIS Standard Markings are prohibited goods and it would not be prudent to release the goods on payment of redemption fine as the appellant is a trader and the goods once released can end-up in the hands of the un-authorised person, which may lead to the risk of safety of passengers travelling by such vehicles. We do not find any error in the observations and the conclusions arrived at by the Commissioner (Appeals). Further, in support, we would like to refer to the decision of the Principal Bench in Commissioner of Customs, New Delhi Vs. Ashwini Kumar Alias Amanullah [2021(376) ELT 321 (Tri.-Delhi)] on the issue of redemption fine under Section 125 of the Act, where observations were made as to whether redemption fine could be allowed or not. The relevant para is quoted below:- "26. A plain reading of the above section shows that the Adjudicating Authority has no discretion in respect of goods which are not prohibited goods and he is bound to give an option of redemption. In case of prohibited goods, such as, the gold in this case, the Adjudicating Authority may a....