COMMISSIONER OF CUSTOMS, HYDERABAD Vs. HASTEN STORES

JUDGEMENT

(1.) THIS is an appeal filed by the Revenue against the Order -in -Appeal No. 53/2008(H -II)[D] -Cus., dated. 31 -10 -2008.

(2.) THE ld. DR for the Department would submit that the respondents herein had imported goods and filed Bill of Entry. At the time of filing the B/E, they did not have any valid Importer -Exporter Code (IEC) Number allotted by DGFT as per the provisions of Section 7 of the Foreign Trade (Development and Regulation) Act, 1992. It is the submission that once the goods are imported without IEC Number, they fall under the category of prohibited goods. It is the submission that these goods are liable for confiscation under Section 111 sub -clause (d) of the Customs Act, 1962 and once the goods are liable for confiscation, penalty is imposable under the provisions of Section 112 of the Customs Act, 1962. It is the submission that the adjudicating authority has imposed penalty under Section 117 of the Customs Act, 1962. He would submit that the question of imposition of penalty under Section 117 of the Customs Act, 1962 would not arise, as it is evident that the appellant had not followed the provisions of Customs Act, 1962. He would submit that aggrieved by such an order of the adjudicating authority, an appeal was preferred before the learned Commissioner (Appeals) and the learned Commissioner (Appeals) has come to the conclusion that the provisions of Section 111 cannot be attracted to the cases in hand. Coming to such a conclusion, the Commissioner (Appeals) has rejected the departments appeal. He would submit that the grounds of appeal raised by them would be read.

(3.) ON perusal of the grounds of appeal, it is seen that the basic thrust of the Revenues appeals is that the respondents herein had violated the provisions of Section 7 of Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade Policy, which would indicate that no export or import shall be made by any person without an Importer -Exporter Code (IEC) number unless specifically exempted. It is the submission that for an assessee to import or export any goods, irrespective of their description, if imported or exported without possessing an IEC, would render the said goods as prohibited, which would render the goods liable for confiscation as per the provisions of Section 111(d) of the Customs Act, 1962 and provisions of Section 112 and provisions of Section 125 of the Customs Act are attracted. They would rely upon the judgment of Nazir -ur -Rahman v. CC, Mumbai [2004 (174) E.L.T. 493 (Tri. -Mumbai)] and the judgment of the Honble Supreme Court in the case of Shri Om Prakash Bhatia v. CC, Delhi [2003 (155) E.L.T. 423 (S.C.)] wherein it was held that prohibition of importation or exportation of goods could be subject to certain prescribed conditions, to be fulfilled before or after clearance of such goods and if such conditions are not fulfilled, it may amount to prohibited goods as per provisions of Section 2(33), 11 and 113(d) of the Customs Act, 1962. In short, the entire argument of the Revenue is that the goods, which were imported without IEC Code, are liable for confiscation under Section 111(d) of the Customs Act and consequences thereon should have been considered by the lower authorities.