Judgment:
1. This is an appeal against the order of Collector (Appeals), New Delhi, dated 24-2-1993.
2. Ld. Counsel stated that the appellant was a doctor practicing in Kanpur. He had retired from the Army and was in possession of a valid licence for holding a fire-arm. The brother of his father-in-law had gifted a revolver and he imported it from Germany. It arrived by post sometime before 20th September, 1985. The A.C. confiscated it and the confiscation was confirmed by the Collector.
3. the appellant appealed to the Tribunal and the matter was remanded for reconsidering the case in the light of the Government of India's instructions contained in F. No. 497/57/87-CUS-VI, dated 5-1-1988.
4. The matter was therefore reconsidered by the Collector (Appeals) and he again confirmed the earlier order of absolute confiscation on the ground that the importation of fire-arms was in prohibited category and therefore its release on redemption fine was not mandatory and such release will not serve any public interest.
5. It was however, his contention that the Government's instructions dated 5-1-1988 (supra) were issued as transitional problems had arisen out of sudden imposition of the ban on the import of fire-arms, and therefore, it was considered proper to regularise all imports made up to 31-1-1987 as evident from a copy of the said order included in the paper book. In the present case, the importation has taken place prior to this date as evident from the order-in-original which indicates parcel No. as 125113/9/85.
6. It was also his submission that the ld. Collector has erred in taking into account a policy which had come into force subsequently and was prevalent at the time of his considering the case. It was also his submission that Section 124, CESA, 1962 vests necessary discretion in the officers and in fact in similar cases the Tribunal has allowed release of fire-arms on payment of redemption fine as evident from the copy of the Order No. A/84-87/89-NRB, dated 26-4-1989.
7. It was his submission that the precedent of this order may be followed and the goods may be allowed to be released in the same way.
8. Ld. DR drew attention towards the order-in-appeal and reiterated the view as contained therein.
9. Ld. Counsel also drew attention to the Import Control Order, 1955 clause (gg)(VII) of Appendix 1-b covering fire-arms and ammunitions. He also drew attention towards Section XIX relating to 'arms and ammunitions; parts thereof and entry 93.02 under Chapter 93 covering 'revolvers and pistol' and 93.05 covering arms of other description and riterated that in such a case the goods may be released on payment of fine and he subsequently filed a copy of the Order No. A/2585/96-NB, dated 4-11-1996 on the same issue in which the precedent cited by him had been followed.
10. I have considered the above submissions. I observe that the fire-arm had been confiscated by the A.C. as it had been imported without ITC licence in contravention of the ITC Order 17/55 read with Section 3 of the Import and Export Control Act and Section 111(d) and (m) of the Customs Act, and there is no dispute that the appellant did not possess either ITC licence or a CCP.11. I observe that in terms of clause 3 of the ITC Order, 1955 (as amended up to 12th April, 1985) the importation of the items specified in Schedule I was prohibited as evident from the following clause :- 3. Restriction of Import of certain goods. - (1) Save as otherwise provided in this Order, no person shall import any goods of the description specified in Schedule I, except under and in accordance, with a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II.12. Admittedly, revolvers and pistols are covered by entry 93.02 of Chapter 93 of Section XIX of Index 1B of Schedule I. The importation of this item was therefore, prohibited under ITC at the time of its importation.
13. It is well settled that the law as stood in force at the time and place of importation of goods is required to be applied, therefore, the adjudicating authority was justified in confiscating the goods imported by post in violation of the above prohibition and in terms of Section 125 of the Customs Act and the discretion to allow release on redemption fine was vested in the said authority and the appellant could not insist upon it as a matter of right.
14. The ld. Collector (A) has erred in referring to a subsequent policy but as noticed above, the prohibition was already in force at the time of importation.
15. Insofar as the Government of India instructions dated 5-1-1988 are concerned they do not reflect any change in the provisions of ITC Act and Orders.
16. That apart it is significant that these instructions are regarding disposal of fire-arms imported in baggage up to 31-1-1987 and those imported under transfer of residence etc. Para 2 of the above instructions further makes the position clear and it reads as follows :- "2. The transitional problems arising out of sudden imposition of ban on the imported of fire-arms in baggage or as gift and the delay in communicating the decision regarding this prohibition to the concerned authorities; particularly, our Missions abroad, had been under consideration of the Government. Having regard to these transitional problems and at the same time keeping in view the need to eliminate profiteering by unscrupulous elements, on account of high copremium commanded by weapons of foreign make in the India market, Government have decided :- (1) to regularise all imported made up to to 31-1-1987 (except those which were already confiscated and disposed of by the Customs authorities) subject to the condition that such fire-arms shall not be transferred to any person in India during the life-time of the licencees for consideration or otherwise; (2) to permit persons bringing their personal effects under the Transfer of Residence Rules, 1978 to import one fire-arm which was in their possession for a minimum period of one year subject to the condition that such fire-arm shall not be transferred to any person in India during their lifetime for consideration or otherwise; and (3) to permit import of sporting weapons for target practice by Rifle Clubs/Associations recognised by Central/State Government of their members, in the basis of specific recommendations of the Department of Youth Affairs and Sports." It would be seen that the appellant's case does not fall in any of the above three categories. Therefore, this relaxation by the Government of India does not help the appellants in any way.
17. The appellant has imported fire arm by POST which is a violation of the Postal Act and the conditions of the Universal Postal Union also.
But since the order-in-original does not refer to these provisions and there is no reference to show cause notice if any issued on this ground I am not laboring this point further. It also appears that initially before the Collector (A) the petitioner had pleaded that he was not aware of the requirement of licence/CCP and therefore it may either be released or if that is not possible, in the alternative, re-export may be allowed as recorded by the ld. Collector (A) in his order dated 4-12-1987. This order was set aside and the matter remanded as noted above and there is no indication that the plea for re-export was again made. In the hearing before us also this plea has not been reiterated and even otherwise because the transport of firearms by post is not permissible, I am not conceding this plea although it is on record as having been made initially before Collector (A). I also find that the ld. Counsel is incorrect in pointing out that the absolute ban came into force only w.e.f. 5-1-1988 because as we have seen that the relevant provisions were in existence even earlier and we are concerned with the policy and the order as they stood at the time of importation.
18. At the same time I notice that the ld. Counsel is right in pointing out that the Tribunal had ordered release of confiscated fire-arms on payment of redemption fine in its Order No. A/2585/96-NB, dated 24-6-1989.
19. Ld. Counsel has drawn our attention to a more recent order dated 4-11-1996 cited by him. It is not clear from these orders as to how a fine of Rs. 400% of CIF value has been considered adequate in the face of the fact that the Government itself had recognised high premium commanded by weapons of foreign make in the Indian market as evident from instructions dated 5-1-1988 (supra) and it has been recognised by Tribunal itself in the above order. Therefore there was very high margin of profit on sale of arms of foreign make. Therefore, in my opinion even if the request for release on fine was acceded to the matter was required to be remanded to the adjudicating authority for ascertaining the margin of profit prevalent during the relevant period and imposing a suitable fine accordingly. Hence, keeping in view that the appellant is an ex-Army officer who has imported it as a gift for personal security and claims to be in the possession of a possession Licence, I remand the matter to the A.C. for considering release of the same on payment of suitable redemption fine on production of possession licence issued under the Arms Act valid at the time of taking delivery with a Surety Bond that the appellant shall not transfer the said arm to any person in India during the lifetime of the assessee for consideration or otherwise.