ORDER
S.V. Maruthi, Member (J)
1. The appeal arises out of an Order No. VIII/12/ACU/10/31/87, dated 24-3-87 of the Addl. Collector of Customs permitting the appellants to re-export the goods on payment of redemption fine of Rs. 5,000/-.
2. The appellants manufacture and sell tyres and tubes. A consignment of Tie bars and Tie chains sent by M/s. Gordon B. Miller & Co., U.S.A. arrived at Delhi airport by flight A.I. 199/4 Nov. 1986. The appellants requested the Deputy Collector to re-export the same as they have not placed any purchase order for these goods, and these were inadvertently sent them to the appellants. The Collector permitted them to re-export subject to the condition that the appellants should pay the redemption fine of Rs. 5,000/- against which the present appeal was filed.
3. The appellants contended that since they have not placed any order for the goods nor any letter of credit was opened, the goods are liable for reexport and the order of the Collector is without jurisdiction.
4. Ms. Renuka Mann appearing for the respondent contended that there is a violation of I.T.C. Policy and therefore, there is justification for permitting the re-export of goods subject to payment of redemption fine. She brought to our notice paragraph 128 of the Handbook of Import and Export Procedures 1985-88 which reads as follows :-
“The fine/penalty imposed in respect of unauthorised imports is likely to be heavy and may lead to even confiscation of the goods or prosecution of the importer/owner of the goods. In special circumstances the importer/owner of the goods may be allowed to re-ship goods, but in such cases also, the importer/owner of the goods will be liable to pay fine/penalty etc. Therefore, the importers should, in their own interest, ensure that what is being imported by them into the country, is in strict conformity with the licence description in every respect and that the consignment is neither in excess of the licensed value or quantity limitations nor different in any way from what is authorised to be imported. Similar precautions should be taken in respect of import under O.G.L.”
5. The question, therefore, is whether the adjudicating authority while permitting the re-export of goods subject to payment of redemption fine acted within his jurisdiction.
6. Section 125, which empowers the authorities to give option to pay fine in lieu of confiscation reads as follows :
“Section 125. Option to pay fine in lieu of confiscation. – (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation of exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods (or, where such owner is not known, the person from whose possession or custody such goods have been seized), an option to pay in lieu of confiscation such fine as the said officer thinks fit :”
The language used is the officer adjudging give to the owner of the goods an option to pay in lieu of confiscation such fine as the said office thinks fit.
7. The Collector by his order confiscated the goods. However, Section 125 of the Act, 1962 he is empowered to allow the importer to redeem the goods on payment of fine. The imposition of fine only validates the import, in other words, on payment of fine the importer becomes absolute owner of the goods, and he is free to export them subject to the provisions of Act, 1962 and rules made thereunder. The provision enables the owner to avoid confiscation by paying the fine imposed. However, there is no provision under the Act empowering the Collector to re-export the goods on payment of redemption fine. The order passed by the Collector is, therefore, without jurisdiction. The reliance placed by Ms. Mann on Para 128 of the Handbook of Import and Export Procedures 1985-88 is irrelevant to the facts of the case.
8. We, therefore, modify the order of the Collector in the following manner :
“The goods are confiscated, but the appellants are entitled to redeem the
same on payment of fine of Rs. 5,000/-.” Accordingly we dispose of the appeal.
