A person imported a consignment paid duty assessed by the department there is no self assessment in customs clears the goods and then use the goods or sell it as per his business requirement. Following sometime the department passes an order saying that the goods has been confiscated and provided him an choice to redeem the goods on payment of redemption fine. He does not know what should he do with this option. Hence he requested the department to confiscate the goods unquestionably.
Jokes apart the basic query which arises right here as to what extent law ought to be stretched. Within the present context this paper look for to examine that whether the goods which are not readily available for confiscation might be confiscated underneath Customs Act 1962 This paper is an humble try to examine this question. Orion apex 127mm maksutov-cassegrain telescope review
To Confiscate usually means to appropriate private home to public treasury. Thus after confiscation the goods becomes a property of your government and the government can handle it because it wants. Via option of redemption fine government gives to some person to take ownership with the goods. Redemption fine is just not a penalty and it has no penal connotation. In Blue Dart Express v. Commissioner of Customs1 the Tribunal observed that redemption fine in lieu of confiscation isnt a fine as understood in criminal jurisprudence. Redemption fine will not be a penalty in that sense. It truly is only an possibility to the particular person to spend an amount in lieu of confiscation. It contains no penal connotation.
Proceeding of confiscation is often a proceeding against the goods they may be proceedings in rem. In rem literally indicates against the house not against the particular person. A proceeding in rem is one taken straight against the home and has for its object the disposition with the home with out reference to the title of person claimants. Distinguishing the terms in rem and in personam supreme Court held in Vishawanathan v. Abdul Wajid2 that a judgment in rem settles the destiny on the res itself and binds all individuals claiming an interest in the property inconsistent together with the judgment despite the fact that pronounced in their absence a judgment in personam though it may concern a res merely determines the rights from the litigants inter se to the res.
The confiscation proceedings are proceeding in rem3. The department can proceed even though the offender is unknown. In CC v. Bhooramal4 it had been held that confiscation proceeding can be initiated even without the need of ascertaining as to whos the real owner of goods. Thus the proceeding of confiscation is really a proceeding against the goods and goods only- can the proceeding be sustained in the event the goods usually are not offered for confiscation
WHEN GOODS Are usually not Obtainable Choice TO REDEEM CANT BE GIVEN- CONFISCATION NOT Probable-
In various cases notably in Crafts Studio v. CCE5 Honble Tribunal held
The appellant also contends that considering the goods had currently been cleared they couldnt are confiscated and redemption fine imposed on them. In assistance of this proposition the appellant has relied on the determination of this Tribunal within the situation of Prudential Pharmaceuticals Ltd. v. CC Chennai 2001 136 E.L.T. 1057 T..... Nonetheless the appellants submission concerning imposition of redemption fine merits acceptance in view with the decision of this Tribunal within the case of Prudential Pharmaceuticals Ltd.
In Mahalaxmi International Export v. CC6 the tribunal held that the moment the goods are cleared from customs they cant be confiscated and redemption fine cannot be imposed. It held in para 10
We come across merit in the appellants submission with regard to imposition of redemption fine. Within the present situation the goods will not be accessible for confiscation. Nor had they been initially cleared against a bond. In such a situation the law doesnt permit imposition of redemption fine as held by us inside the Ram Khazana Electronic Ors. v. CC AIR Cargo Jaipur Supra 2003 156 E.L.T. 122 Tribunal.
On this reasoning the tribunal held in Sansui India v. CC7 that when the goods will not be seized and not obtainable using the department for actual confiscation such goods cannot be confiscated and query of giving selection to importer to pay fine in lieu of confiscation does not arise. It held in para 4
Section 111 from the Customs Act describes the goods brought from a place outside India which shall be liable to confiscation for various actions or omissions. Section 125 of your Customs Act provides that whenever confiscation of goods is authorised by the Customs Act the adjudicating authority may possibly within the case of prohibited goods and shall within the case of any other goods give for the owner of your goods an solution to spend fine in lieu of confiscation. Inside the present matters the goods imported by the Appellants were cleared out of Customs charge following assessment of Bills of Entry and payment of duty. It had been only by means of investigation conducted subsequent for the release of goods the Department came to know about the under-valuation. Even so the goods released for the Appellants were never seized. Therefore the goods although were liable to confiscation was never offered with all the Department for actual confiscation. In the event the goods are usually not readily available with all the Department the question of their confiscation and giving any possibility for the importer to spend fine in lieu of confiscation beneath Section 125 from the Customs Act does not arise. Its also not the situation on the Revenue that the goods were seized and happen to be released for the Appellants provisionally. In view of these facts the Revenue cant confiscate the goods and order the goods to be redeemed on payment of redemption fine.
In Shivalaya Spinning v. CC8 the Tribunal declared clearly
In so far as redemption fine is concerned we agree using the contention in the ld. Counsel based on the decisions from the Apex Court cited by him that when the goods are certainly not available for confiscation redemption fine cannot be imposed. Consequently the order imposing redemption fine is set aside.
ONLY IMPORTED GOODS Is often CONFISCATED GOODS CLEARED FOR Dwelling CONSUMPTION Are usually not IMPORTED GOODS-
Section 111 of the Customs Act say Confiscation of improperly imported goods. Hence Section 111 from the Customs Act is applicable only for the imported goods. Section 225 in the Customs Act defines imported goods as
imported goods implies any goods brought into India from a place outside India but isnt going to include goods which have already been cleared for house consumption.
This confiscation is often assailed on this ground also. Underneath customs Act only imported goods is usually confiscated. As per the definition of imported goods underneath Section 225 on the Customs Act goods cleared for household consumption will not remain imported goods. In Bussa Oversea v. C L Mahar9 Division Bench of your Mumbai High Court held that as soon as goods are cleared for dwelling consumption from customs they cease to be imported goods and hence they may be not liable to confiscation. It explained in para 7
The first submission in the learned counsel is that the goods imported underneath 45 consignments were cleared for household consumption on the petitioners executing ITC bonds as required beneath sub-section 1 of Section 143 in the Act. The learned counsel urged that when the goods are cleared for property consumption then the goods covered by the consignments cease to be imported goods in accordance together with the definition of expression imported goods under Section 2 in the Act and consequently such goods are certainly not liable for confiscation. Theres considerable merit inside the submission of the learned counsel. The goods lose its character of imported goods on being granted clearance for dwelling consumption and thereafter the power to confiscate might be exercised only in cases where the order of clearance is revised and cancelled. Shri Chagla then submitted that the proceedings for imposition of penalty underneath Section 112 are certainly not permissible in the event the goods can not be confiscated below Section 111 from the Act. The submission will not be correct. Section 112 deals using the levy of penalty for improper importation of goods and Section 112a provides that any particular person who in relation to any goods does or omits to do any act which act or omission would render this kind of goods liable to confiscation underneath Section 111 or abets the doing or omission of this kind of an act is liable to a penalty. The power to impose penalty might be exercised not only when the goods are accessible for confiscation but when such goods are liable to confiscation. The expression liable to confiscation clearly indicates that the power to impose penalty can be exercised even when the goods are certainly not offered for confiscation. It truly is probable that the goods may perhaps be cleared for home consumption with out the Customs Authorities being aware that the clearance is sought by suppressing the relevant facts or by producing documents that are hot genuine. The mere fact that the importers secured such clearance and disposed on the goods and thereafter goods are certainly not obtainable for confiscation cant divest the Customs Authorities of your powers to levy penalty below Section 112 with the Act. Shri Chagla relied upon the selection of Calcutta High Court reported in 2000 123 E.L.T. 330 Cal. 1976 Tax. L.R. 1567 Thomas Duff and Co. India Ltd. v. Collector of Customs and others. The Calcutta High Court took the view in a situation of export where a show-cause notice was issued as to why penal action need to not be taken that as soon as the goods were exported andor not out there for confiscation then the Customs Authority had no jurisdiction to initiate the proceedings by issuance of show-cause notice for levy of penalty. It is actually not attainable to share the view taken by the Calcutta High Court. The power to levy penalty is just not dependant upon availability of your goods imported or exported. The power to levy penalty arises because the importer or exporter has done or omitted an act in relation to goods and which renders this kind of goods liable for confiscation. The power in our judgment to levy penalty is accessible after the Customs Authorities come for the conclusion that the goods imported or exported were liable to confiscation because of act or omission on the part from the importer or exporter as the case may be. The power isnt dependant upon the availability with the goods. It is actually therefore not feasible to accede towards the submission of Shri Chagla that as the goods covered by 45 consignments were not offered for confiscation beneath Section 111 in the Act the Customs Department could not have commenced proceedings underneath Section 112 on the Act for levy of penalty.
This judgment has been affirmed by the Honble Supreme Court10. Thus it has been authoritatively decided that as soon as the goods are cleared for house consumption the goods cease to be imported goods and consequently these goods cannot be confiscated underneath Section 111 on the Customs Act however penalty is often imposed underneath section 112 for improper imports.
This view was followed by the tribunal in situation of Southern Enterprises v. CC11 wherein it held in para six
Revenue cant confiscate the goods which have already been cleared for residence consumption as they ceased to be imported goods as defined in Section 2 from the Customs Act and as held by the Bombay High Court in the situation of Bussa Overseas Properties P. Ltd. cited supra. The same view has been expressed by the Tribunal within the case of Kishandas Sources India Impex P. Ltd. and inside the situation of Leela Dhar Maheswari v. CCE.
NATIONAL TREATMENT OF IMPORTED GOODS-
This view is also in consonance with WTO agreement Article III from the GATT on national treatment of imported goods that as soon as the imported goods passes customs barrier there must not be any discrimination between imported goods and goods locally produced. Thus when the goods are cleared for home consumption the cleared goods merges with all the local goods and they must not be differentiated from the locally produced goods.
GOODS RELEASED PROVISIONALLY OR ON BOND-
In a series of judgments the Apex Court and Tribunal have held that when the goods are released provisionally or below Bond the goods can be confiscated and redemption fine might be imposed. In Weston Components v. CC12 the Supreme Court held that
It is contended by the learned Counsel for the appellant that redemption fine couldnt be imposed because the goods were no longer in the custody of your respondent-authority. Its an admitted fact that the goods were released towards the appellant on an application made by it and around the appellant executing a bond. Under these circumstances if subsequently it truly is found that the import was not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said goods then the mere fact that the goods were released on the bond being executed would not take away the power of the customs authorities to levy redemption fine.
The view is supported by various other judgments in the Apex Court notably East India Commercial Company v. CC13 Jeevraj v. CC14 and Harbans Lal v. CCE15.
In Atlas Casting Metal v. CC16 the Tribunal held that when the goods has been released on bond the bond is usually enforced as well as the goods might be confiscated.
Nonetheless it can be humbly submitted that the above view is not correct. It really is clear from the definition of Section 225 that the moment the goods are cleared for household consumption theyre not imported goods. Clearance includes provisional clearance. As per section 22 of your Customs Act the term assessment includes provisional assessment. In view of this definition even when the goods are provisionally cleared for residence consumption the goods has been cleared for dwelling consumption as well as the goods cease to be imported goods.
Even on the basis in the provision of option to redeem underneath Section 125 on the Customs Act this kind of alternative can only be offered in the event the possession on the goods are together with the department. The moment the goods are provisionally cleared the possession just isnt together with the department and a alternative to redeem can not be given. Thus even on this logic goods cannot be confiscated the moment it truly is provisionally released.
I am sure the judiciary will consider these grounds as and when suitable opportunity comes.
ARMS OF LAW MUST NOT BE OVERSTRECHED-
Every law is an infraction of human liberty17. As a result it truly is necessary that the law must not be extended from their natural meaning unless until there may be clear and unambiguous mandate of the legislature. Overstretching laws almost always make bad laws.
Despite these binding judgments and clear provisions of law on confiscation the department keeps on confiscating goods not readily available for confiscation and cleared for household consumption and keeps on fighting infructuous litigation. Such vexatious litigation do not affect rich and powerful but greatly affect small importers. Aptly said
The net of law is spread so wide
No sinner from its sweep might hide.
Its meshes are so fine and strong
They take in every child of wrong.
O wondrous web of mystery
Big fish alone escape from thee
Views expressed are personal views of author.
RAJESH KUMAR
1 1999 111 ELT 102
2 AIR 1963 SC 1 on page 15
3 S Indrasanrai Ltd. v. CC 1983 13 ELT 1305 SC
4 1983 13 ELT 1546 SC
5 2004 163 ELT 109
6 2004 169 ELT 68
7 2005 180 ELT 483
8 2002 146 ELT 610
9 2004 163 ELT 304
10 2004 163 ELT A 160
11 2005 186 ELT 324
12 2000 115 ELT 278 SC
13 1983 13 ELT 1342 SC
14 1997 94 ELT 459 SC
15 1993 67 ELT 20 SC
16 2005 186 ELT 575
17 Jeremy Bentham Orion apex 127mm maksutov-cassegrain telescope review Every author wants glowing book reviews with quotable sentences to use as testimonials. A good review makes readers flock to the bookstore to buy the book.

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