The Kolkata Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ordered fresh adjudication on absolute confiscation of mosquito swatter without question of redemption.
The appellant in the present appeal is M/s. Nakshatra Impex.
Three Bills of Entry were filed for clearance of the mosquito swatter/bat UTH (HS code) 85167920 claiming clearance under Open General License (OGL) since mosquito swatter/bat was freely importable as per Foreign Trade Policy in force.
The Director General of Foreign Trade (DGFT) issued vide Notification No. 02/2015-20, New Delhi dated: 26.04.2021, amended the import policy and incorporated a policy condition under HS code 85167920 and 85167990 of chapter-85 of ITC (HS) 2017, schedule-I (Import Policy).
The effect of the notification was, mosquito killer racket under HS code 85167920 and 85167990 in theimport policy was revised from free to prohibited, if CIF value is below Rs. 121/- per racket.In view of the policy restriction taking the date of effect of the notification from the date of B/L, the item became restricted/prohibited.
Accordingly, the subject goods were held liable for absolute confiscation under Section 111(d) of the Customs Act, 1962 and penalty was also imposed under Section 112(a)(i) of the Customs Act,1962 for their acts of omission and commission rendering the goods liable for confiscation under Section 111(d) of the Customs Act.
In Har Govind Das K. Joshiv.Collector, the Supreme Court held that absolute confiscation of goods by Collector without question of redemption on payment of fine although having discretion but omitted to consider such a discretion available and remanded the matter to Collector for consideration of an exercise of discretion for imposition of Redemption fine.
The Tribunal of PK Choudhary, Judicial Member observed that “The Appeals filed by the Appellants are allowed by way of remand to the Adjudicating authority for denovo consideration and to decide the case using the discretion in a prospective manner.”
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