M/S. Goodyear South Asia Tyres Pvt. Ltd vs Commissioner Of Customs, Icd Maliwada ...

Customs Excise and Service Tax Appellate Tribunal16 September 2015

CitationAPPEAL NO. C/961/04

Ratio decidendi

The rule this decision rests on

Where goods imported under an import licence or policy regime are sold and re-exported, the prohibition on sale of old capital goods without prior permission from the Director General of Foreign Trade applies irrespective of whether the sale is within India or outside India, because the relevant paragraph of the Handbook of Procedure draws no distinction between the two; a sale in breach of that paragraph constitutes a violation of the Import and Export Policy and Handbook of Procedure, rendering the goods liable to confiscation. A redemption fine in lieu of confiscation may be fixed at a reduced figure in light of the facts and circumstances of the case, and a penalty under Section 114 of the Customs Act, 1962 is not warranted where the case does not call for one on those facts, so that the penalty may be set aside while confiscation is upheld.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALWEST ZONAL BENCH AT MUMBAICOURT NO. IIAPPEAL NO. C/961/04

[Arising out of Order-in-Appeal No. BPS(277) 128/2004 dtd. 2/8/2004 passed by the Commissioner of Central Excise & Customs(Appeals), Aurangabad]

For approval and signature:

Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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M/s. Goodyear South Asia Tyres Pvt. Ltd.

Appellants

Commissioner of Customs, ICD Maliwada Aurangabad :

Respondent

Appearance

Shri. T. Vishwanathan, Advocate for the Appellants Shri. D.K. Sinha, Asstt. Commissioner (A.R.) for the Respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 16/9/2015 Date of decision 16/9/2015

ORDER NO.

Per : P.K. Jain

The brief facts of the case are that the appellant imported old moulds required for the manufacture of tyres M/s. Goodyear Phillippies Inc, Philippines and were cleared on payment of appropriate duty. After receipt of the goods, appellant was not satisfied with the quality of the old moulds and it is claimed there was of no use to them. After one year and nine months they exported back these moulds to the supplier. Revenues contention is that as per the provisions of Para 2.3 of the Hand Book of Procedure at the relevant time the appellant could not have sold mould without prior permission from DGFT. The case was adjudicated. Goods were confiscated, redemption fine of Rs. 1, 24,000/- in lieu of confiscation, equal amount of penalty was imposed under Section 114 of the Customs Act, 1962.

2. Ld. Counsel submitted that relevant para 2.3 of the Hand Book is for sale within India. In their case, moulds were re-exported and hence said para is not applicable. Learned Counsel further submitted that purpose of the said para is to prohibit trading in old capital goods and in their case it is not the trading but since imported mould were not usable by them, they were forced to sell it back to their original supplier and thus sale in this case is technical in nature.

3. Ld. A.R. reiterates the observations made in the impugned order.

4. We have considered the rival submissions.

5. We find that it is not in dispute that goods were sold and re-exported. We note that relevant para of the Hand Book Procedure makes no distinction between sale within India and sale out side India and therefore there is violation of provisions of Import and Export Policy/Hand Book of Procedure. Confiscation of the goods therefore is upheld. However, keeping in view the facts and circumstances of the case, redemption fine is reduced to Rs. 50,000/-. We do not find it to be fit case for imposing penalty. Penalty is therefore set aside. Appeal is dismissed except the above modification. (Dictated in court)

Ramesh Nair Member (Judicial) P.K. Jain Member (Technical)

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