SMT. SARANGA AGARWAL Vs. CC, (SEAPORT-IMPORTS)

JUDGEMENT

(1.) THIS appeal is directed against the impugned order by which the Commissioner of Customs confiscated a car imported by the appellant Under Section 111(d) of the Customs Act '62 (the Act), ordered its redemption on payment of a fine of Rs. Eight lakhs and imposed a penalty of Rs. Two lakhs Under Section 112 on the appellant. The facts of the case are that the appellant had imported a new 'Hummer H2' brand car by vessel Jakarta Star. The Commissioner found that the import of the car was in violation of conditions prescribed under the relevant Exim Policy. The Import Licensing Notes appended to Chapter 87 ITC (HS) had stipulated that new vehicles should be imported from the country of manufacture and that import of vehicles of value (FOB) US$40,000 or more had to be accompanied by a Type Approval Certificate (TAC) issued by an International Accredited Agency (IAC) of the country of origin. As the vehicle was imported from Thailand and not from the USA and no TAC was produced, the car under import was confiscated under Section 111(d) of the Act and allowed to be redeemed on payment of fine.

(2.) THE Ld. Counsel for the appellant reiterates the grounds taken in the appeal and submits that the Policy Circular No. 26 (RE -2003)/2002 -07 dated 09.02.04 referred to in the Import Licensing Note No. 7 under Chapter 87 of ITC (HS) did not prescribe any accredited international agency for issuing TAC in the case of cars manufactured in the USA. A copy of the Circular is furnished. It is submitted that in the absence of a mention of the agency that should issue a TAC in the relevant circular, the importer was not required to furnish such a certificate. He relies on Final Order No. 1197 -1198/08 -SM (BR) dated 22.08.08, which had, in a case of similar import held that allegation of violation of the licensing note was not sustainable. The Tribunal also had relied on a similar order in the case of J.S. Gujral v. CC, New Delhi reported in in passing the above order. As the international accredited agency had declined to issue the required certificate, in the case of J.S. Gujral v. CC (supra), it was held that the importer could not be required to fulfill a condition which was impossible for him to fulfill. Penalty for the violation involved in importing the car without the TAC was vacated. It is submitted that the appellant deserved similar relief. The Ld. Counsel also relies on a decision of the Tribunal in Alsa Marine & Harvests Ltd. v. CC, Cochin reported in 2007 (216) ELT 405 (Tri. -Chen.), wherein it was held that in deciding violation involved in not fulfilling impossible conditions, the authorities ought to have borne in mind the legal maxim lex non cogit ad impossibilia which meant that the law did not require a person to do the impossible.

(3.) THE Ld. SDR submits that the relevant circular referred to in para 7 under Chapter 87 of ITC (HS) could not have excluded a country like the USA from where new cars were often imported into India. It was uncertain if the circular produced by the appellants had not been modified by incorporating USA and the concerned international accredited agency subsequent to its issue in 2004. It is also submitted that the impugned order contained a categorical finding by the Commissioner that in the instant case, a new car made in USA had not satisfied the condition of import from the country of manufacture. She requests that the matter may be remanded to the Commissioner for a fresh adjudication when all the relevant aspects of the case could be examined with reference to the documents now submitted by the appellant.