ORDER
S.L. Peeran, Member (T)
1. This appeal arises from Order-in-Original dated 23-4-92 ordering for confiscation of imported goods and granting redemption in lieu of confiscation and payment of fine of Rs. 32,200 and also imposing a penalty of Rs. 2,000. The appellants had imported 515 pieces of Electronic components from U.S.A. and cleared the same vide Bill of Entry No. 27834 dated 27-10-90 on execution of Licence Bond for Rs. 34,400 in lieu of List attestation. They did not submit the List attestation as required under ITC P.N. 44/90 dated 20.07.90. The Department could not enforce the bond as the amounts were neither paid by the importer nor by the Bank when the Department subjected the Bond for enforcement on 23-9-91. Hence, the present proceedings were initiated. During the personal hearing, the appellants’ Director had explained that they obtained a letter of JCCI & E dated 3.2.92, wherein they had clarified that requirement of OGL entitlement certificate is not essential for clearance of goods irrespective of date of shipment and they are not required to produce list attestation. The Addl. Commissioner in the impugned order did not accept the letter of the JCCI & E and held that during the relevant period they were required to have produced list attestation by the Sponsoring authority for electronic components covered under OGL in terms of Para 64 (1) and (2) of the policy that existed during the period of the import. However later this was dispensed with and, therefore, the JCCI had clarified that as the same had been dispensed with the appellants are not required to satisfy the provisions of Para 64 (3). This was not accepted by the Additional Commissioner who proceeded to confiscate the goods and impose the fine and penalty.
2. Learned Consultant submits that in another proceedings of like nature which was determined by AC against them was appealed before Commissioner (Appeals) who in his Order-in-Appeal No. 397/92 dated 20.08-92 set aside the confiscation of fine of the ground that the goods were not available for confiscation and in such circumstances the order of confiscation is null and void as it is a settled law. In this context, he relies on the judgment of the Tribunal rendered in the case of Grauer and Weil (India) Ltd., Vapi v. CCE wherein this proposition has been laid down. He further submits that this was the case where subsequently the requirement of obtaining list attestation has been dispensed with and the appellants have been permitted to clear the goods and in such bona fide circumstances, no redemption fine or penalty was imposable and in this context he relies on the Supreme Court judgment rendered in the case of Jain Exports Pvt Ltd., v. Union of India . He also points out to the judgment of the Tribunal rendered in the case of Miles India Ltd v. CC wherein it has been laid down that it is not necessary to order confiscation and imposition of redemption fine in bona fide circumstances. He also refers to the judgment of Kishan Shamdas Bhatia and Anr. v. CC , Luxor Pen Co. v. CC wherein it has been held that though the law provides for confiscation of goods if they are unauthorisedly imported however, it has to be considered in the light of the facts and circumstances of each individual case and merely because the import is considered as unauthorised, confiscation and imposition of fine is not an unavoidable exigency. It has been noted in that case that the Collector himself was satisfied about the bona fides of the appellants and the delay in getting registration was due to bona fide impression, as can be seen from the records, that registration was not necessary, which was also confirmed by the DGTD. Therefore it was held that there was no intention on the part of the appellants to violate the provisions of Customs Act and the Import & Export (Control) Act. Therefore in the light of the judgments of the Tribunal, the Tribunal set aside the redemption fine and penalty.
3. Learned SDR defending the Order, pointed out that Para 64 (3) of the import policy as it stood then was required to have been complied. The Para 64 (3) required production of list attestation and as it was not entitled to order for confiscation, he points out that confiscation has not been challenged. He further submits that this is not a case of an absolute confiscation. Absolute confiscation cannot be done in every case and that is the clarification given by the Courts. However, Section 125 itself gives option to release the goods and that has to be done only on payment of fine in lieu of confiscation and of such fine as determined by the Officer. He points out that Section 125 does not lay down for release of goods without imposition of fine and in proposition directing release of goods where confiscation is held to be sustainable without payment of fine is in not keeping with the legislative intent and law laid down under Section 125 of the Customs Act. He points out to the judgment of Uptron India Ltd v. CCE rendered under the Excise Act which conveys it in Para 9 as follows:
9. Normally the offending goods available are confiscated but if released provisionally pending decision, the redemption fine which would have been leviable on the goods, had they been produced before the Officer could always be ordered to be realised from the Bank guarantee/bond and the Collector having ordered such realisation, the appellants do not stand to gain from this technicality.
He submits that in the present case the Additional Collector has ordered for release and not for absolute confiscation and release has to be made only on payment of fine which is justified. He points out that as the bond money was not recoverable, hence the Officer has powers to order for confiscation in such cases. It is only when bond is enforceable then in such case confiscation fine is not to be imposed which is left to the discretion of the Officer.
4. On a careful consideration of the submission I notice in the present case the simple violation is of non-production of list attestation in terms of Para 64. This para has been subsequently deleted and therefore the JCCI & E issued a letter dated 3-2-92 to clarify that the same is not required and the goods could be cleared. In the light of the clarification given by the JCCI a question arises as to whether confiscation fine can be imposed in the present case. It has been held by the Hon’ble Supreme Court in the case of Jain Exports Put Ltd., (supra) that while determining the question of quantum of redemption fine, it is essential to consider the facts and circumstances relevant to the bona fide conduct of the importer in importing the goods. It referred to earlier judgment rendered in the case of D. Navinchandra & Co., Bombay and Ors. v. Union of India and Ors. and that of B. Vijay Kumar v. Union of India wherein it has also laid down that, question of bona fide import is relevant for determining the quantum of redemption fine. In the present case, the bona fides of the party is not doubted nor of the appellants having imported the electronic components for actual user purpose in the manufacture of final product in terms of phased manufacturing programme as approved by the sponsoring authorities. They had obtained SSI Certificate and had also applied for obtaining the list attestation in terms of Para 64. It is the authorities namely JCCI who issued a letter stating that the same is not required. In the circumstances like this and in view of the subsequent change in policy, therefore insisting on this Certificate for clearance, it is not justified. Be that as it may they are extenuating circumstances for not imposing redemption fine as the import was bona fide in terms of phase manufacturing programme as approved by the sponsoring authority. In similar circumstances the “Tribunal in the case of Luxor Pen Company relying on earlier judgments held that when there are bona fides which had been verified by the Collector and confirmed by DGTD and that there is no intention on the part of the appellants to violate provisions of the Customs Act Import & Export (Control) Act, then in such circumstances redemption fine is not imposable. In this case Learned Consultant does not wish to challenge the confiscability of the goods. However he submitted that even that is challengable as the goods were not available and the bond had to be enforced which is a settled law in terms of Grauer and Weil (India) Ltd., supra. But he does not want to make a bone of contention of this issue but would only like to restrict the argument for non-levy of fine in the present case. I notice from the judgment of Grauer and Weil (I) Ltd., (supra) which has been laid down that the goods have been released provisionally under a part and when goods are not available for confiscation, the Tribunal has held that no order of confiscation or levy of fine can be made but the bond is required to be enforced. Section 125 grants option to release the goods which are confiscated on payment of fine. But the practice of the Custom House also, in extenuating circumstances to release goods without levying fine on warning only. Although the Section 125 clearly lays down that the goods can be released in lieu of confiscation on imposition of fine as determined by the Officer; the words appearing in Section 125 are, ‘As the said Officer thinks fit’. Therefore the Officer has to apply his mind and give his findings as to why the fine is required to be imposed or to be released only on warning. This is precisely what the Hon’ble Supreme Court has held in the case of Jain Exports Pvt Ltd., and ordered the case to be remanded to the authorities for determining the quantum of fine. In the present case as the Commissioner (Appeals) itself in appellants own case has held that no fine can be imposed and that the Order-in-Appeal No. 397/92 dated 208-92 has been accepted by the Department and has not been challenged; therefore I am inclined to follow the decision of Luxor Pen Co., Kishan Shamdas Bhatia and Anr. supra, Miles India Ltd., supra to hold that in the present case they are no mala fides on the part of the appellants calling for imposition of fine and, therefore, I set aside the fine or penalty and allow the appeal.