TaxTMI 
TaxTMI 
2003 (7) TMI 73
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....f restricted items import whereof is permitted subject to certain conditions. The importer had obtained an advance licence in July, 1997. Against the said licence the importer had imported and cleared five consignments of raw silk through the Kolkata port free of duty subject to the condition that the imported goods after conversion had to be re-exported. Intelligence was gathered by the officers of the Directorate of Revenue Intelligence, Kolkata to the effect that M/s. Olympia Exports based in New Delhi had imported and cleared five consignments of raw silk against a fraudulently obtained advance licence and had sold the said imported silk in the open market without discharging the export obligation. Thus they had violated the provisions of the revenue exemption notification and the export-import policy. Further intelligence was gathered to the effect that the same importer had again imported two consignments of silk fabric and tussah silk through Kolkata port and the said consignments were awaiting clearance, it appears that while the investigation by the Directorate of Revenue Intelligence, Kolkata was going on, the importer got a wind of it and therefore it never turned up to ....
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....oner of Customs, Kolkata confirmed confiscation of goods, duty and the penalties proposed in the show cause notice. The Commissioner found that the importer was guilty of misrepresentation of facts and falsification of documents. The import was contrary to law and therefore the goods were liable for confiscation. 3.At this stage, it is noted that respondent No.1 had filed a Writ Petition in the Kolkata High Court while the proceedings were still pending before the Commissioner of Customs, Kolkata. At the initial stage the High Court had passed an order giving four months' time to the Commissioner of Customs to adjudicate upon the show cause notice. However, the Writ Petition was disposed of on 5th July, 2000. By that time the Commissioner of Customs had already passed an order in the adjudication proceedings arising out of the show cause notice. The High Court noticed that the party had a right of appeal against the said order. The Writ Petition was disposed of with the direction. "CEGAT, Eastern Bench will proceed only on the point as to whether the petitioner is the owner of the goods and the goods are entitled to be re-exported. The appeal will be preferred by the petit....
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....evant period. The import of the goods in question is permitted only against a licence. The licence is granted subject to the condition of re-export of goods. The importer had failed to comply with the condition of re-export of finished or semi-finished goods, qua, the imports already made under the same licence. When the consignments in question were imported, the importer did not even turn up inspite of notice for fear of action regarding the previous Imports and likelihood of action being taken regarding the current imports. No licence was produced and no bill of entry was filed to complete the process of importation. This rendered the import against the prohibition imposed regarding the import. As such Section 111(d) of the Customs Act comes into play. It clearly empowers confiscation of the goods. The action of the Department in confiscating the goods was clearly in accordance with law. 7.It is to be found from the facts on record that respondent No. 1 surfaced only after the show cause notice had been issued. It put in appearance through an advocate purportedly appointed as an Attorney. The actual party never came forward. This gives rise to a suspicion that the importer an....
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.... import or export is to an extent a prohibition. The expression "any prohibition" in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions "prohibiting", "restricting" or "otherwise controlling", we cannot cut down the amplitude of the word "any prohibition" in Section 111(d) of the Act. "Any prohibition" means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition." 11.On the question of breach of conditions contained in the exemption notification by the importer, this court held in Sheshank Sea Foods Pvt. Ltd., Karnataka v. Union of India and Others [(1996) 11 SCC 755] that : "The communication of the Central Board of Excise and Customs dated 13-5-1969, refers to the breach of the condition of a licence and suggests that it may not be possible to take action under Section 111 (o) in respect thereof, it is true that the terms of the said exemption notification were made part of the appellants' licences and, in that sense, a breach of the terms of the said exemption notification is also a breach of the terms of t....
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....t being under a licence. The import was legal. In the present case, the import is without a valid licence and is clearly in violation of Section 111 (d) and (o) of the Customs Act. This is a clear distinction between Dugar's case and the present case. Therefore, in our view Dugar's case can be of no help to the respondent No.1. 15.The learned Senior Counsel for respondent No. 1 - Shri Rajeev Dhawan had argued that the exporter continued to be the owner of the goods as the property in goods had not passed. The importer had not retired the document of title to goods which were sent through the bank. Therefore, it was submitted that the exporter had title to the goods and was entitled to re-export the goods. In our view, this argument has no merit so far as the facts of the present case are concerned. The present is a case of illegal import and provisions of Section 111(d) and (o) of the Customs Act clearly apply. The goods are liable to confiscation. The considerations which are relevant under the sale of Goods Act cannot be applied in the context of present facts. 16.In support of his argument that the property in goods had not passed, Mr. Dhawan, learned Senior Counsel for re....