1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CUSTOMS CUSTOMS CUSTOMS APPEAL APPEAL APPEAL NO.70 OF 2007 NO.70 OF 2007 NO.70 OF 2007 The The The Commissioner of Customs Commissioner of Customs Commissioner of Customs Import Import Import JNMCH Nhava Sheva JNMCH Nhava Sheva JNMCH Nhava Sheva ...... Appellant Appellant Appellant vs vs vs Balu Balu Balu India India India ...... Respondent Respondent Respondent Mr.Parag Mr.Parag Mr.Parag Vyas Vyas Vyas with Mr.Y.R.Mishra for with Mr.Y.R.Mishra for with Mr.Y.R.Mishra for Appellant Appellant Appellant Mr.Vikram Mr.Vikram Mr.Vikram Nankani Nankani Nankani with Mr.M.M.Boya for Respondent with Mr.M.M.Boya for Respondent with Mr.M.M.Boya for Respondent CORAM CORAM CORAM : : : F.I.REBELLO AND F.I.REBELLO AND F.I.REBELLO AND R.S.MOHITE, R.S.MOHITE, R.S.MOHITE, JJ JJ JJ DATED DATED DATED : : : 30TH NOVEMBER, 2007 30TH NOVEMBER, 2007 30TH NOVEMBER, 2007 P.C. P.C. P.C. 1.1.1. The revenue has preferred this appeal against The revenue has preferred this appeal against The revenue has preferred this appeal against the the the order of CEGAT dated 13th October, 2005. order of CEGAT dated 13th October, 2005. order of CEGAT dated 13th October, 2005. 2.2.2. The appellants had imported a consignment of The appellants had imported a consignment of The appellants had imported a consignment of 132 132 132 pieces of used diesel engines and claimed pieces of used diesel engines and claimed pieces of used diesel engines and claimed exemption exemption exemption under Notification No.204 of 1992 dated under Notification No.204 of 1992 dated under Notification No.204 of 1992 dated 19th 19th 19th May 1992 against advance licence dated 3rd May 1992 against advance licence dated 3rd May 1992 against advance licence dated 3rd October October October 1994. The appropriate officer in terms of 1994. The appropriate officer in terms of 1994. The appropriate officer in terms of the the the advance licence did not levy any duty at the advance licence did not levy any duty at the advance licence did not levy any duty at the time time time of importation of the goods as it was claimed of importation of the goods as it was claimed of importation of the goods as it was claimed that that that the goods were for re-conditioning and the goods were for re-conditioning and the goods were for re-conditioning and re-export. re-export. re-export. As it was found that the goods were not As it was found that the goods were not As it was found that the goods were not viable viable viable for reconditioning, they approached DGFT for for reconditioning, they approached DGFT for for reconditioning, they approached DGFT for cancellation cancellation cancellation of the licence and the licence was of the licence and the licence was of the licence and the licence was cancelled. cancelled. cancelled. 3.3.3. The tribunal noted that the question therefore The tribunal noted that the question therefore The tribunal noted that the question therefore would would would be whether the goods which at the time of be whether the goods which at the time of be whether the goods which at the time of clearance clearance clearance from the Customs House claimed exemption from the Customs House claimed exemption from the Customs House claimed exemption 2 under under under Notification No.204 of 1992 customs were made Notification No.204 of 1992 customs were made Notification No.204 of 1992 customs were made according according according to the law duty free or not. to the law duty free or not. to the law duty free or not. 4.4.4. The licence was subsequently cancelled and The licence was subsequently cancelled and The licence was subsequently cancelled and proceedings proceedings proceedings were initiated and penalty imposed were initiated and penalty imposed were initiated and penalty imposed under under under section 111 (d) of the Customs Act, 1962. section 111 (d) of the Customs Act, 1962. section 111 (d) of the Customs Act, 1962. 5.5.5. The learned tribunal noted that an appeal had The learned tribunal noted that an appeal had The learned tribunal noted that an appeal had been been been preferred by the respondents before the CEGAT preferred by the respondents before the CEGAT preferred by the respondents before the CEGAT against against against the order of confiscation and penalty and the order of confiscation and penalty and the order of confiscation and penalty and the the the tribunal tribunal tribunal vide order dated 4th June 1997 had set vide order dated 4th June 1997 had set vide order dated 4th June 1997 had set aside aside aside the the the order of confiscation and penalty and the order of confiscation and penalty and the order of confiscation and penalty and the matter matter matter was remanded back to the Commissioner. was remanded back to the Commissioner. was remanded back to the Commissioner. However, However, However, that part demanding customs duty of that part demanding customs duty of that part demanding customs duty of Rs.3,87,000/- Rs.3,87,000/- Rs.3,87,000/- was not a set aside. The tribunal was not a set aside. The tribunal was not a set aside. The tribunal then then then proceeded to hold that considering the proceeded to hold that considering the proceeded to hold that considering the aforesaid aforesaid aforesaid circumstances of the case the impugned circumstances of the case the impugned circumstances of the case the impugned order order order is set aside. The appellants are allowed to is set aside. The appellants are allowed to is set aside. The appellants are allowed to re-export re-export re-export the imported goods within 3 months on the imported goods within 3 months on the imported goods within 3 months on failure, failure, failure, the consequences as set out therein would the consequences as set out therein would the consequences as set out therein would follow. follow. follow. 6.6.6. The revenue has preferred an appeal against the The revenue has preferred an appeal against the The revenue has preferred an appeal against the said said said order. Section 111 (d) reads as under : order. Section 111 (d) reads as under : order. Section 111 (d) reads as under : 111. 111. 111. " Confiscation of improperly imported " Confiscation of improperly imported " Confiscation of improperly imported goods goods goods etc. etc. etc. " " " (d) (d) (d) any goods which are imported or any goods which are imported or any goods which are imported or attempted attempted attempted to be imported or are brought to be imported or are brought to be imported or are brought within within within the Indian customs waters for the the Indian customs waters for the the Indian customs waters for the purpose purpose purpose o fbeing imported, contrary to any o fbeing imported, contrary to any o fbeing imported, contrary to any prohibition prohibition prohibition imposed by or uder this Act or imposed by or uder this Act or imposed by or uder this Act or any any any other law for the time being in force. other law for the time being in force. other law for the time being in force. The The The goods were imported under a valid licence goods were imported under a valid licence goods were imported under a valid licence 3 and and and custom duty imposed and paid. The impugned custom duty imposed and paid. The impugned custom duty imposed and paid. The impugned order order order of the tribunal notes that part of the order of the tribunal notes that part of the order of the tribunal notes that part of the order demanding demanding demanding customs duty was not set aside. In the customs duty was not set aside. In the customs duty was not set aside. In the light light light of the above, in our opinion, questions of of the above, in our opinion, questions of of the above, in our opinion, questions of law law law as framed would not arise. Section 111 (d) as framed would not arise. Section 111 (d) as framed would not arise. Section 111 (d) would would would be inapplicable to the facts of the present be inapplicable to the facts of the present be inapplicable to the facts of the present case. case. case. In In In the light of that, Appeal is dismissed. the light of that, Appeal is dismissed. the light of that, Appeal is dismissed. There There There shall be no order as to costs. shall be no order as to costs. shall be no order as to costs. (F.I.Rebello, (F.I.Rebello, (F.I.Rebello, J) J) J) (R.S.Mohite, (R.S.Mohite, (R.S.Mohite, J) J) J)