Goods Imported without IE Code may not be Classified as Prohibited and Slapped with Confiscation Order

CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL

SOUTH ZONAL BENCH AT BANGALORE

Bench - Single Member Bench

Court - II

Date of Hearing: 30.03.2012

Date of decision: 30.03.2012

Customs Appeal No. 182/2009

(Arising out of Order-in-Appeal No. 58/2008 (H-II) (D) Cus. dated 27.11.2008 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad

For approval and signature:

Honble Mr. M. Veeraiyan, Member (Technical)

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

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

3. Whether their Lordship wish to see the fair copy of the Order? Seen

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

The Commissioner of Customs and Central Excise

Hyderabad ..Appellant(s)

Vs.

M/s. Port Ware International LLC Respondent(s)

Appearance

Mrs Sabrina Cano, Superintendent (AR) for the Revenue

None for the respondent

Coram:

Honble Mr. M. Veeraiyan, Member (Technical)

FINAL ORDER No._______________________2012

1. This is an appeal by the department against the order of the Commissioner (Appeals) No. 58/2008 (H-II) (D) Cus. dated 27.11.2008.

2. Heard the learned Superintendent (AR) for the appellant/department. None appears for the respondent in spite of notice.

3. The respondent appears to have imported a consignment of Canvas Office bags intended to be distributed to the employees of the newly opened branch office. They have imported the said consignments without procuring the IEC number. Original authority, vide order dated 27.06.2008, held that such import without IE code was in violation of Section 7 of the Foreign Trade (Development & Regulation) Act, 1992. Therefore, he has imposed a penalty of Rs. 2000/- on the importer under Section 117 of the Customs Act for having committed the act of importing goods without having Importer/Exporter Code. Department was of the view that even the goods which have been imported should have been held liable for confiscation as importation without an IE code amounted to import of prohibited goods. Accordingly, appeal was filed before the Commissioner (Appeals) who rejected the appeal of the department. He specifically noted that there was no detail of the goods imported. He has also held that the goods could not be treated as prohibited goodsin terms of Section 2(33) of the Customs Act. Against the order of the Commissioner (Appeals) upholding the order of the original authority, the department has filed appeal before the Tribunal.

4. Learned Superintendent (AR) reiterates the grounds of appeal.

5. I have carefully considered the submissions and perused the records. Even before the Tribunal the relevant details as to the number of bags and the value of import has not been furnished. Bill of entry copy is also not enclosed. From the order of the original authority, it appears to be a case of import not in commercial quantity and not for commercial purpose. Apparently, there is a violation in not taking an IE code before import of the goods. Original authority has imposed a penalty of Rs. 2,000/- under Section 117 of the Customs Act. Apparently, the imported goods have been subjected to assessment and duty stands collected. Merely because IE code was not there, to treat the said goods as prohibited would be only on a technical ground and could not treated as a prohibition in the real sense of the term. As the goods are apparently cleared and not available for seizure, the question of confiscating them at this stage also does not arise. There is no valid ground adduced to interfere with the order of the Commissioner (Appeals) which has upheld the order of the original authority penalizing the respondent under Section 117 for violation of importing without IE code.

6. Appeal is, therefore, rejected.

(Pronounced and dictated in open Court)

(M. VEERAIYAN) MEMBER (TECHNICAL)