Plastic Duniya Vs. Collector of Customs - Court Judgment

Excerpt:
1. being aggrieved with the confiscation of the imported video cassette mould valued at rs. 2,93,031/- under section 111(d) of the customs act with an option to redeem the same on payment of a redemption fine of rs. 30,000/-, the appellants have filed their present appeal.2. short facts so far as relevant for the purpose of this appeal are that the appellants imported video cassette mould. the goods were shipped on 30-3-1988 and arrived in india on 2-4-1988. in terms of para 22a of appendix 6 of the relevant import & export policy for the year april 1985 - march 1988 the importers were required to be registered as industrial units and eligible to the import made. after the arrival of the goods on 2-4-1988 the appellants requested to the adjudicating authority for waiver of show cause notice and also the personal hearing. accordingly, the additional collector of customs adjudicated the case and held that the imported goods were liable to confiscation under section 111(d) of the customs act in the absence of a valid licence and also to personal penalty under section 112(a) of the act.however, he ordered for the confiscation of the subject goods with an option to redeem the same as aforesaid and refrained himself from imposing any personal penalty in the fact and circumstances of the case.3. shri s.p. bhatnagar, learned counsel for the appellants vehemently contended that in terms of the said para 22 (a) of appendix 6 of am 85-88 the requirement was only to produce the certificate of registration at the time of clearance of the goods and since in the instant case the bill of entry was filed on 22-4-1988 the appellants were having the registration certificate, the question of holding the import illegal does not arise. elaborating on his arguments he submitted that the appellants are registered as a small scale industrial unit with the directorate of industries, delhi administration, delhi and held a registration certificate dated 25-4-1986 and that the appellants placed the order for the supply of the subject goods which was shipped on 30-3-1988 and arrived in india on 2-4-1988. he highlighted that before the actual importation the appellants applied to the deputy director of industries vide their letter dated 3:3-1988 for addition of subject goods as provisional end-product and sought the amendment on the said certificate dated 25-4-1986 and reminded the deputy director of industries vide their letter dated 18/21-3-1988 and ultimately the said certificate was amended w.e.f. 6-4-1988 as could be seen from the photo-copy of the certificate issued by the deputy director of industries. in this premises he submitted that though at the time when the subject goods arrived in india on 2-4-1988 the appellants were not having the certificate, yet at the time of submitting of the bill of entry on 22-4-1988 the appellants did have the certificate and the same was produced. he also advanced a new contention for the first time here without seeking the permission of the tribunal to the effect that for producing plastic housings the appellants required mould, commonly known as plastic boxes themselves video cassette mould which could be imported under ogl by the actual users. alternatively he also submitted for reduction of the redemption fine particularly inviting my attention to the fact that the additional collector had not imposed any personal penalty. he also cited the following case law -collector of central excise v. tisco, 4. in reply shri g. bhushan, learned sdr submitted that on a plain reading of the said para 22 (a) of appendix 6 of am 85-88 it would be clear that the importer must be registered as such at the time of shipment of the goods and the requirement of producing the said certificate at the time of clearances is only for the satisfaction of the authorities concerned to ascertain as to whether the importer was registered as such at the time of shipment or not. he also submitted that the other contention of the learned counsel for the appellants that the subject goods are sort of plastic boxes themselves is to be stated only to be rejected as it is not substantiated by any evidence or literature. nor such plea was raised at the time of adjudication.besides, the appellants themselves applied for the amendment of their certificate. this itself indicates that they were treating the imports goods as moulds by itself and not as sort of plastic boxes themselves.as regards the reduction of redemption fine the learned sdr submitted that looking to the value of the imported goods the redemption fine is quite proportionate hardly about 10%.5. i have considered the submissions. from the two cases cited above it is clear that the facts and circumstances are not similar to the instant case. the case of jain silk traders, supra, in my considered opinion goes against the appellants and support the department. in that case it was held that "the importer has to register the contract with the textile commissioner prior to importation and at the time of clearance he should produce a ceritficate from the appropriate authority that he is an industrial unit". in the instant case as aforesaid the amendment was made effective from 6-4-1988 i.e.subsequent to the date of the shipment of the goods in the country. the case of collector of central excise v. tisco, supra is also not applicable because in the facts and circumstances of the case it was held that exemption subject to following certain procedure, the permission granted for such exemption to be taken from the date of the application and not from the date of permission. in the instant case the certificate was amended by the deputy director of industries expressly stating that item video cassette blank added on provisional basis w.e.f. 6-4-88. when such is a situation how any authority can treat this amendment from the date of application. to put it differently it is not the case where the certificate was amended without expressing the date from which the amendment would be effective but is a case where an authority has expressly stated that the amendment would come into effect from 6-4-1988. needless to state that if such amendment should have been made effective from the date of the application the remedy lies elsewhere and certainly not before the tribunal nor i am competent to sit over the wisdom of the director of industry.6. as regards the contention of the learned counsel for the appellants that the subject goods were sort of plastic boxes themselves, i do not find any evidence on record to substantiate the said contention and therefore agreeing with the learned sdr reject the contention of the learned counsel for the appellants.7. in view of the above i hold that the adjudication order holding the import illegal cannot be assailed. however, taking into consideration the fact that the appellants did get their certificate amended subsequent to the date of actual landing of the goods in the country, i feel that in the facts and circumstances of the case the redemption fine of rs. 30,000/- is on excessive side. thus, taking all the facts and circumstances into consideration i reduce the redemption fine from rs. 30,000/- to rs. 15,000/- (rupees fifteen thousand only).8. except with the aforesaid modification the appeal is otherwise rejected.

Judgment:
1. Being aggrieved with the confiscation of the imported Video Cassette mould valued at Rs. 2,93,031/- under Section 111(d) of the Customs Act with an option to redeem the same on payment of a redemption fine of Rs. 30,000/-, the appellants have filed their present appeal.

2. Short facts so far as relevant for the purpose of this appeal are that the appellants imported Video Cassette mould. The goods were shipped on 30-3-1988 and arrived in India on 2-4-1988. In terms of para 22A of Appendix 6 of the relevant Import & Export Policy for the year April 1985 - March 1988 the importers were required to be registered as Industrial Units and eligible to the import made. After the arrival of the goods on 2-4-1988 the appellants requested to the Adjudicating Authority for waiver of show cause notice and also the personal hearing. Accordingly, the Additional Collector of Customs adjudicated the case and held that the imported goods were liable to confiscation under Section 111(d) of the Customs Act in the absence of a valid licence and also to personal penalty under Section 112(a) of the Act.

However, he ordered for the confiscation of the subject goods with an option to redeem the same as aforesaid and refrained himself from imposing any personal penalty in the fact and circumstances of the case.

3. Shri S.P. Bhatnagar, learned counsel for the appellants vehemently contended that in terms of the said para 22 (a) of Appendix 6 of AM 85-88 the requirement was only to produce the certificate of registration at the time of clearance of the goods and since in the instant case the Bill of Entry was filed on 22-4-1988 the appellants were having the registration certificate, the question of holding the import illegal does not arise. Elaborating on his arguments he submitted that the appellants are registered as a small scale industrial unit with the Directorate of Industries, Delhi Administration, Delhi and held a Registration Certificate dated 25-4-1986 and that the appellants placed the order for the supply of the subject goods which was shipped on 30-3-1988 and arrived in India on 2-4-1988. He highlighted that before the actual importation the appellants applied to the Deputy Director of Industries vide their letter dated 3:3-1988 for addition of subject goods as provisional end-product and sought the amendment on the said certificate dated 25-4-1986 and reminded the Deputy Director of Industries vide their letter dated 18/21-3-1988 and ultimately the said certificate was amended w.e.f. 6-4-1988 as could be seen from the photo-copy of the certificate issued by the Deputy Director of Industries. In this premises he submitted that though at the time when the subject goods arrived in India on 2-4-1988 the appellants were not having the certificate, yet at the time of submitting of the Bill of Entry on 22-4-1988 the appellants did have the certificate and the same was produced. He also advanced a new contention for the first time here without seeking the permission of the Tribunal to the effect that for producing plastic housings the appellants required mould, commonly known as plastic boxes themselves Video cassette mould which could be imported under OGL by the actual users. Alternatively he also submitted for reduction of the redemption fine particularly inviting my attention to the fact that the Additional Collector had not imposed any personal penalty. He also cited the following case law -Collector of Central Excise v. TISCO, 4. In reply Shri G. Bhushan, learned SDR submitted that on a plain reading of the said para 22 (a) of Appendix 6 of AM 85-88 it would be clear that the importer must be registered as such at the time of shipment of the goods and the requirement of producing the said certificate at the time of clearances is only for the satisfaction of the authorities concerned to ascertain as to whether the importer was registered as such at the time of shipment or not. He also submitted that the other contention of the learned counsel for the appellants that the subject goods are sort of plastic boxes themselves is to be stated only to be rejected as it is not substantiated by any evidence or literature. Nor such plea was raised at the time of adjudication.

Besides, the appellants themselves applied for the amendment of their certificate. This itself indicates that they were treating the imports goods as moulds by itself and not as sort of plastic boxes themselves.

As regards the reduction of redemption fine the learned SDR submitted that looking to the value of the imported goods the redemption fine is quite proportionate hardly about 10%.

5. I have considered the submissions. From the two cases cited above it is clear that the facts and circumstances are not similar to the instant case. The case of Jain Silk Traders, supra, in my considered opinion goes against the appellants and support the department. In that case it was held that "The importer has to register the contract with the Textile Commissioner prior to importation and at the time of clearance he should produce a ceritficate from the appropriate authority that he is an Industrial Unit". In the instant case as aforesaid the amendment was made effective from 6-4-1988 i.e.

subsequent to the date of the shipment of the goods in the Country. The case of Collector of Central Excise v. TISCO, supra is also not applicable because in the facts and circumstances of the case it was held that exemption subject to following certain procedure, the permission granted for such exemption to be taken from the date of the application and not from the date of permission. In the instant case the certificate was amended by the Deputy Director of Industries expressly stating that Item Video Cassette blank added on provisional basis w.e.f. 6-4-88. When such is a situation how any authority can treat this amendment from the date of application. To put it differently it is not the case where the certificate was amended without expressing the date from which the amendment would be effective but is a case where an authority has expressly stated that the amendment would come into effect from 6-4-1988. Needless to state that if such amendment should have been made effective from the date of the application the remedy lies elsewhere and certainly not before the Tribunal nor I am competent to sit over the wisdom of the Director of Industry.

6. As regards the contention of the learned counsel for the appellants that the subject goods were sort of plastic boxes themselves, I do not find any evidence on record to substantiate the said contention and therefore agreeing with the learned SDR reject the contention of the learned counsel for the appellants.

7. In view of the above I hold that the adjudication order holding the import illegal cannot be assailed. However, taking into consideration the fact that the appellants did get their certificate amended subsequent to the date of actual landing of the goods in the Country, I feel that in the facts and circumstances of the case the redemption fine of Rs. 30,000/- is on excessive side. Thus, taking all the facts and circumstances into consideration I reduce the redemption fine from Rs. 30,000/- to Rs. 15,000/- (Rupees fifteen thousand only).

8. Except with the aforesaid modification the appeal is otherwise rejected.