Judgment:
1. The appellants imported SF 600 Plus CT Spectrophotometer with Data Color Tools QC Software. They filed a Bill of Entry dated 3.7.2001 with the Air Cargo Customs, New Customs House, New Delhi for the clearance of the same. They declared the value of the goods as Rs. 11,85,854. The Customs Authorities have however initiated the proceedings against them. The importers waived the show cause notice. The Commissioner of Customs, Air Cargo Customs, New Customs House, New Delhi in his order dated 5.9.2001 observed that the appellants have not obtained a valid IEC number; that as per the provisions of Exim Policy 1997-2002 no export or import can be made by any person without such IEC number unless specifically exempted. The Commissioner in his order has further observed that as per para 4.6 of Handbook of Procedures the exempted categories of persons, include persons/institutions/hospitals importing or exporting goods for personal use not connected with trade or manufacture or agriculture. He has observed that since spectrophotometer is to be used to check colour parameters in the office of the importers and the importers are engaged in the business of apparel and houseware items, they do not appear to be covered by the exemption under para 4.6 of the Handbook. He accordingly concluded that the goods are imported in contravention of the Export Import Policy 1997-2002 and are liable for confiscation under Section 111(d) of the Customs Act, 1962. Consequently, the Commissioner has ordered for confiscation of the goods under these provisions. He has, however, allowed their redemption on payment of a fine of Rs. 2.5 lakhs under Section 125 of the Customs Act, 1962 and further has imposed a penalty of Rs. 50,000 under Section 112 on the party.
2. This appeal is against the impugned order of the Commissioner. I have heard Shri P.R. Chopra, Advocate for the appellants and Shri H.C.Verma, JDR for the respondents. I have carefully considered the submissions made by both the sides. The Ld. Counsel for the appellants submits that they had made a specific submission before the adjudicating authority that they are not engaged in any import and export activity and had no sale or income and were also not having a PAN number. They contended that they were unable to get the IEC code and that the imported item was only for their office work in respect of which they have been granted RBI permission. Accordingly, it is contended that they fall under the exempted categories of persons as provided in para 4.6 of the Handbook of Procedures and the findings of the Commissioner in this regard are not tenable. The Ld. Counsel further relies on the decision of the Tribunal in the case of Laser Sight (India) (P) Limited v. CCE in which relying on the judgment of the Supreme Court in the case of Mangalore Chemicals and Fertilizers v. CCE it is held that obtaining of the code number is only a procedural requirement and mere non-observance of the same should not lead to confiscation of the imported goods under Section 111(d) of the Customs Act as this sub-section provides for confiscation of the goods in case of imports contrary to any prohibition. I find force in the submissions made before me. It is observed that the above cited decision of the Tribunal was not placed before the adjudicating authority and consequently it appears that the case of the appellants has not been considered in its proper perspective. In this view, the matter would call for going back to the Commissioner for reconsideration and a fresh decision in the light of the above observations. The impugned order is therefore set aside and the matter is remanded for de novo adjudication as analysed above. The appellants shall be afforded a reasonable opportunity before arriving at the final decision. The appeal is thus allowed by remand in these terms.