M/S. Dee Pearls (India) Pvt. Ltd. Vs. Commissioner of Customs (imports) Nhava Sheva - Court Judgment

SooperKanoon Citationsooperkanoon.com/942565
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnFeb-23-2012
Case Number APPEAL NO. C/913/07 - Mum Arising out of Order-in-Original No. 83/2007 dated 28.09.2007 passed
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL)
AppellantM/S. Dee Pearls (India) Pvt. Ltd.
RespondentCommissioner of Customs (imports) Nhava Sheva
Advocates:For the Appellant : Shri T. Vishwanathan, Advocate with Shri Bharat Raichandani, Advocate. For the Respondent : Shri Sanjay Kalra, Appraiser (A.R.).
Excerpt:
p.r. chandrasekharan the appeal is directed against order-in-original no. 83/2007 dated 28.09.2007 passed by the commissioner of customs (imports), nhava sheva. 2. the appellant m/s dee pearls (india) pvt. ltd., silvasa, imported 2117.74 mt of rough marble blocks under 13 bills of entry during the period from 13.6.2007 to 06.08.2007. as per exim policy 2004-09, import of rough marble blocks was restricted and needed a import licence for import. inasmuch as the appellant did not have any such licence, the goods under import were held liable to confiscation under section 111(d) of the customs act, 1962. however, the appellant was allowed to redeem the confiscated goods valued at rs.2,74,19,409/- on payment of a redemption fine of rs.1,29,18,926/- and a penalty of rs.12,87,000/- was imposed on the appellant. hence the appellant is before us. 3. the learned counsel appearing for the appellant submits that subsequent to the issue of the above order, the appellant has obtained a licence dated 30.06.2008 from the dgft allowing them to import a total quantity of 2117.74 mt of rough marble blocks and as per the said licence the same is valid for goods already cleared by the customs against undertaking/bond under 13 bills of entries. inasmuch as the imports have been regularized, the matter needs to be sent back to the adjudicating authority for reconsideration afresh in the light of the licence now obtained. 4. the learned authorised representative appearing for the revenue on the other hand refers to a letter dated 14th august, 2007 issued by the dgft, addressed to the appellant, wherein it is stated that in pursuance to their application dated 01.08.2007, the appellants have been granted licence for import of 5400.96 mt of rough marble blocks subject inter alia to the condition that the licence shall be valid only for goods shipped on or after 13.04.2007. he submits that in view of this condition and inasmuch as the goods have been imported in the instant case prior to 31.7.2007, the licence now submitted by the appellant is not valid for the imports which have taken place prior to 31.07.2007. he also relies on the judgement of the honble high court, bombay in the case of sophisticated marbles and granite industries vs. union of india - 2004 (166) elt 318 (bom.) wherein the honble high court held that importers, importing goods without licence and then seeking to validate the import by obtaining subsequent licence, cannot be allowed to take advantage of their own wrong. in the light of this judgement the learned a.r. submits that the licence now obtained cannot be allowed to be used by the appellant. 5. we have carefully considered the rival submissions. 6. we have seen the licence issued by the competent authority permitting the appellant to import a quantity of 2117.74 mt of rough marble blocks. the said licence though dated 30.06.2008, clearly states that it is valid for goods already cleared by the customs against undertaking/bond against 13 bills of entry as mentioned in the undertaking dated 12.06.2008. inasmuch this licence was not produced before the adjudicating authority, the matter needs to be remanded back to the adjudicating authority for reconsideration of the matter afresh in the light of the licence now obtained. accordingly, we set aside the impugned order and remand the matter back to the adjudicating authority for consideration afresh after giving reasonable opportunity to the appellant to make submissions in their defence. 7. thus the appeal is allowed by way remand.
Judgment:

P.R. Chandrasekharan

The appeal is directed against order-in-original No. 83/2007 dated 28.09.2007 passed by the Commissioner of Customs (Imports), Nhava Sheva.

2. The appellant M/s Dee Pearls (India) Pvt. Ltd., Silvasa, imported 2117.74 MT of Rough Marble Blocks under 13 Bills of Entry during the period from 13.6.2007 to 06.08.2007. As per EXIM Policy 2004-09, import of Rough Marble Blocks was restricted and needed a import licence for import. Inasmuch as the appellant did not have any such licence, the goods under import were held liable to confiscation under Section 111(d) of the Customs Act, 1962. However, the appellant was allowed to redeem the confiscated goods valued at Rs.2,74,19,409/- on payment of a redemption fine of Rs.1,29,18,926/- and a penalty of Rs.12,87,000/- was imposed on the appellant. Hence the appellant is before us.

3. The learned Counsel appearing for the appellant submits that subsequent to the issue of the above order, the appellant has obtained a licence dated 30.06.2008 from the DGFT allowing them to import a total quantity of 2117.74 MT of Rough Marble Blocks and as per the said licence the same is valid for goods already cleared by the Customs against undertaking/bond under 13 Bills of Entries. Inasmuch as the imports have been regularized, the matter needs to be sent back to the adjudicating authority for reconsideration afresh in the light of the licence now obtained.

4. The learned Authorised Representative appearing for the Revenue on the other hand refers to a letter dated 14th August, 2007 issued by the DGFT, addressed to the appellant, wherein it is stated that in pursuance to their application dated 01.08.2007, the appellants have been granted licence for import of 5400.96 MT of Rough Marble Blocks subject inter alia to the condition that the licence shall be valid only for goods shipped on or after 13.04.2007. He submits that in view of this condition and inasmuch as the goods have been imported in the instant case prior to 31.7.2007, the licence now submitted by the appellant is not valid for the imports which have taken place prior to 31.07.2007. He also relies on the judgement of the Honble High Court, Bombay in the case of Sophisticated Marbles and Granite Industries vs. Union of India - 2004 (166) ELT 318 (Bom.) wherein the honble high court held that importers, importing goods without licence and then seeking to validate the import by obtaining subsequent licence, cannot be allowed to take advantage of their own wrong. In the light of this Judgement the learned A.R. submits that the licence now obtained cannot be allowed to be used by the appellant.

5. We have carefully considered the rival submissions.

6. We have seen the licence issued by the competent authority permitting the appellant to import a quantity of 2117.74 MT of Rough Marble Blocks. The said licence though dated 30.06.2008, clearly states that it is valid for goods already cleared by the Customs against undertaking/bond against 13 Bills of Entry as mentioned in the Undertaking dated 12.06.2008. Inasmuch this licence was not produced before the adjudicating authority, the matter needs to be remanded back to the adjudicating authority for reconsideration of the matter afresh in the light of the licence now obtained. Accordingly, we set aside the impugned order and remand the matter back to the adjudicating authority for consideration afresh after giving reasonable opportunity to the appellant to make submissions in their defence.

7. Thus the appeal is allowed by way remand.