COMMISSIONER OF CUSTOMS Vs. M.R. EXPORTS

JUDGEMENT

(1.) .The respondents filed a Shipping Bill on 17 -7 -2000 for export of 59.994 MTs of Bangalore Rose Onions to Malaysia. Concerned officers of Customs, upon examination of the goods, found the consignment to be consisting of 39.994 MTs of Bangalore Rose Onions and 20 MTs of small variety onions. As the exporter did not produce any permit or licence from the competent authority for export of the small variety onions and did not fulfil certain requirements stipulated in respect of the Bangalore Rose Onions in Notification No. 21 (RE -2000) 1997 -2002 issued by the DGFT, the original authority confiscated the entire consignment under Section 113(d) of the Customs Act, but with option for redemption of the goods against payment of a fine of Rs. 83,000/ -. It also imposed a penalty of Rs. 50,000/ - on the party under Section 114 of the Act. The first appellate authority set aside the order of the lower authority, by relying on the Tribunal's decision in Prayag Exporters Pvt. Ltd. v. Commissioner of Customs affirmed by the Supreme Court in Commissioner of Customs v. Prayag Exporters Pvt. Ltd. . Hence this appeal of the Revenue.

(2.) HEARD both sides. Ld. SDR challenges the finding of the lower appellate authority that the onions are not in the nature of prohibited goods for export. Referring to the further finding recorded by ld. Commissioner (Appeals) that the goods are only restricted for export, ld. SDR points out that, where any goods are found to be 'restricted' for export, they should be held to be 'prohibited' for export. In this connection, reliance is placed on the following decisions of the Supreme Court:

(3.) LD . Counsel for the respondents seeks to justify the reliance placed by ld. Commissioner (Appeals) on the Supreme Court's judgment in Prayag Exports case and also submits that, unless it is shown by the department that the Central Government had specifically prohibited, restricted or otherwise regulated export of onions by order under Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992, the subject goods cannot be dubbed as "prohibited" and, for that matter, the apex court's judgments cited by ld. SDR cannot be applied to this case. Without prejudice to this argument, ld. counsel submits that the respondents were permitted to withdraw the goods from export and, in such circumstance, the authorities should be lenient in the matter of determining the quanta of redemption fine and penalty. After giving careful consideration to the submissions, I find that the question whether "restriction" on export of goods would amount to "prohibition" is no longer res integra inasmuch as it was ruled by the Hon'ble Supreme Court as early as in 1970 in the case of Sheikh Mohd. Omer (supra) that "prohibition" included "restriction". Of course, that decision was rendered in relation to Section 111(d) of the Customs Act and Section 3 of the Imports and Exports (Control) Act, 1947. The provisions invoked by both sides in the present case are Section 113(d) of the Customs Act, 1962 and Section 3 of the Foreign Trade (Development and Regulation) Act, 1992. On a perusal of these provisions, I find that, while Section 111 of the Customs Act deals with cases of improper import of goods, Section 113 of the Act deals with attempted improper export of goods. Clause (d) of Section 111 and Clause (d) of Section 113 are, in pith and substance, literally identical. These provisions read as under: