TaxTMI 
TaxTMI 
2025 (8) TMI 18
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..../- under section 125 of the Act to re-export it. He also imposed a penalty of Rs. 2,50,000/- under section 112 and Rs. 1,00,000/- under section 117 of the Act. 2. The undisputed facts of the case are that the appellant had imported the vehicle from Ukraine on 30.6.2021 for an exhibition under the "ATA Carnet" under which goods could be imported duty free as per exemption Notification No. 157/90- Cus subject to the condition that the vehicle is re-exported within six months or within such further period of extension not exceeding six months granted by the Commissioner. The vehicle was required to be re-exported by 29.12.2021 and the appellant sought extension which was granted upto 26.4.2022. 3. Meanwhile, war broke out between Ukraine and Russia and it became impossible for the appellant to transport the vehicle back to Ukraine. So, the appellant sought further extension which was, however, not granted because the notification did not provide for grant of a second extension by the Commissioner. The appellant could not re-export the vehicle. After examining various options, the appellant sent a letter dated 10.9.2022 proposing to re-export the vehicle through Romania. It appea....
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....nditions are not fulfilled. (v) The confiscation of the goods, the redemption fine and penalties are therefore, correct and balanced and need to be upheld and the appeal may be dismissed. Findings 8. We have considered the submissions advanced by both sides and perused the records. The issues to be decided in this case are: a) Confiscation of the vehicle under section 111(o) of the Act and the imposition of redemption fine of Rs. 5,00,000/- under section 125 of the Act; b) Penalty under section 112(ii) of the Act; and c) Penalty under section 117 of the Act. 9. We note that the appellant had made an incorrect submission in paragraph D.4 of the appeal that penalty was imposed under section 112 and therefore, it was a composite penalty imposed under section 112(a), 112(b) and 112(ii) without specifying how much penalty has been imposed under each of the clauses. A perusal of the order shows that penalty was imposed only under section 112(ii) only. Relevant legal provisions 10. We reproduce below the relevant sections. Section 111. Confiscation of improperly imported goods, etc. The following goods brought from a pla....
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.... value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest. Section 117 Penalties for contravention, etc., not expressly mentioned. Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding four lakh rupees. Section 111 11. Section 111 makes goods covered by clauses (a) to (q) and brought from a place outside India liable to confiscation. Of these,clause (o) is relevant to this case. It makes any goods exempted, subject to any condition, from duty or any prohibition on import under this Act or any other law for the time being in force, in respect of which the condition is not observ....
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....t, it has to seek such sanction from the proper officer. 15. If no decision on sanction of non-observance of conditions of exemption from duty or prohibition under section 111(o) was taken or if such a decision was not required by the proper officer at the time of assessment, and this question has to be decided in any adjudication proceedings, the officer adjudicating the matter must take a decision to sanction the non-observance of the condition or not because at that stage, the adjudication is inextricably linked to the decision. 16. In this case, the non-observance of the conditions happened after importation and the matter was adjudicated by the Commissioner. At that stage, he could have, sanctioned the non-observance of the conditions under section 111(o). It does not appear that a decision was taken to "Not sanction the non-observance of the conditions". This possibility was not considered at all by the Commissioner. 17. Considering the peculiar circumstances of the case, we sanction the non-observance of the condition of the exemption notification as per section 111(o). Consequently, we hold that the imported goods are not liable to confiscation under section 111 an....
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....rt examined the provisions of section 167 of the Sea Customs Act, 1878 which also provided for certain goods to be liable to confiscation and certain persons be liable to penalty and held that these expressions provide a discretion to the adjudicating authority which must be exercised judicially and not arbitrarily. Relevant portions of the judgment are below. 15. It should not be overlooked that here we have the case of deprivation of property because confiscation is just that. It is idle to say that it is not, because on payment of a fine which is equal to the value of the goods. The importer can take delivery of the goods. It only means that the appellants having been deprived of their goods, are given an offer to purchase such goods. Keeping this in mind we shall refer to the penal provision under which the Collector of Customs purported to act. Section 167 of the Sea Customs Act mentioned the offences which shall be punishable to the extent mentioned in the third column of the same with reference to such offences. Item 8 of the schedule in so far as it is material runs thus : Offences Section of Sea Customs Act to which offence has reference Penalties (1) ....