ORDER
Archana Wadhwa, Member (J)
1. All the appeals are being disposed off by a common order as they arise out of same impugned order passed by Commissioner of Customs, Jamnagar vide which he has confiscated the High Speed Diesel Oil (HSD) imported by the appellant M/s Adani Exports Ltd. with an option to them to redeem the same on payment of redemption fine of Rs. 75 lakhs. In addition, personal penalty of Rs. 25 lakhs has been imposed on them in terms of provisions of Section 112(a) (ii) of the Customs Act, 1962. Personal penalty of various amounts have also been imposed upon other appellants in terms of Section 112 of Customs Act.
2. We have heard S/Shri J.C. Patel & W. Christian, learned advocates appearing for appellants and Shri Samir Chitkara, learned SDR for the Revenue.
3. As per facts on record, M/s Adani Exports Ltd. imported 5104.00 MT of HSD oil under the agency of M/s Saheli Synthetics (P) Ltd., who is a 100% EOU. In as much as HSD is a canalized item and its import is permitted only through the canalized agency by the licence holder or by a 100% EOU as actual user, it was observed that in as much as M/s Adani Exports Ltd. was neither appointed as canalized agency nor produced any licence issued by DGFT nor were they 100% EOU, nor the goods imported by them were meant for supply to EOU, imports made by them were not in accordance with law. Accordingly, investigations were initiated against them and during the course of investigation, statements of various persons were recorded. As a result of said statements, it came on record that one M/s Saheli Synthetics (P) Ltd. is a 100% EOU and as such is entitled to import HSD as an actual user. They had given a letter of authority to M/s Adani Exports Ltd. to import the HSD as their agent along with copies of green card, import-export code number and general bond executed by them. The execution of such letter of authority dt. 30.03.01 by M/s Saheli Synthetics (P) Ltd. stands accepted by the director of the said M/s Saheli as well as by the authorized representative of M/s Saheli and is not in dispute. However, it is the stand of the Revenue that such an arrangement between M/s Adani Exports Ltd. and M/s Saheli was with a malafide intention of importing HSD without payment of duty and diverting the same to the domestic market, for which proceedings were initiated which culminated in to the impugned order passed by the Commissioner.
4. We find apart from the fact that M/s Saheli Synthetics (P) Ltd. has not disputed having given a letter of authority to M/s Adani Exports Ltd., and as such, it can’t be concluded that the import was without any authority of law, we find that during the course of adjudication, appellants pleaded that in terms of provisions of Para 4.16 of the import-export policy, any person is allowed to import goods other than prohibited goods and store them in private/public bonded warehouse. Such goods may subsequently be cleared from warehouse for home consumption against licence, wherever required and in terms of the policy. Subsequent to the seizure of the goods, the same were provisionally released and deposited in the private warehouse. As per clarification issued by DGFT vide their letter dt.21.11.02, 23.06.03, such HSD stored in private bonded warehouse was subsequently cleared by them to 100% EOU and ocean going vessels/ships, as ship stores. As such, it was contended before the adjudicating authority that imported goods having been disposed off in accordance with the clarifications given by DGFT, and in terms of the policy, confiscation of the same was neither warranted nor justified.
5. The above contention of the appellant does not stand accepted by adjudicating authority on the sole ground that at the time of initial investigation, such a plea was never forwarded by the appellant and the contravention having been established at that point of time, subsequent claim of the appellant in terms of Para 4.15 of the policy can not be accepted.
6. We find no merit in the above reasoning of the adjudicating authority. The fact is that Para 4.15 allows individual to import goods except prohibited items and warehouse them in private/public bonded warehouse. The warehoused goods can subsequently be cleared for home consumption in accordance with the provisions of this policy and the custom duty as applicable shall be paid at the time of clearance of such goods. Admittedly, the HSD imported was stored in private bonded warehouse and subsequently supplied to 100% EOU or to vessels as ship stores. Merely because the claim of the above provision of law was not made at the time of original investigation will not debar the appellant from claiming the same during adjudication especially when there are DGFT’s clarifications on the point. It is further seen that the said provisions require clearance from bonded warehouse against licence wherever required. Para 4.24 of the policy is to the effect that the goods already imported/shipped/arrived in advance, but not cleared from customs may also be cleared against the licence issued subsequently. As such, the policy itself recognizes issuance and production of licence subsequent to the actual act of importation and storing in the bonded warehouse. It is settled position of law that benefit available under alternative provisions of law, if otherwise admissible, can always be claimed by the assessee and is required to be examined by the authorities. As such, appellant’s claim to alternative benefit in terms of provisions of Para 4.15 of Import-Export Policy cannot be summarily dismissed on the sole ground that the claim was not made at the time of export. In as much as goods, after provisional clearance, were admitted to be in bonded warehouse, and cleared to 100% EOU, in accordance with the law, we do not find any justification for confiscation of the same or for imposition of penalty upon various persons. Accordingly, we set aside the impugned order and allow all the appeals with consequential relief to the appellants.
(Pronounced in Court on 7-6-07)