Commissioner Of Customs, Icd, Tkd vs J. S. Gujral & Anr.
2008 Latest Caselaw 1829 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment delivered on: 17.10.2008

+            CUS. A. C. 6/2008 & CUS. A. C. 9/2008

COMMISSIONER OF CUSTOMS, ICD, TKD                        ... Appellant

                                 - versus -

J. S. GUJRAL & ANR.                                      ... Respondents

Advocates who appeared in this case:

For the Appellant : Mr Mukesh Anand with Ms Zeba Tarannum Khan and Mr Shailesh Tiwary For the Respondents : Ms Kanchan Kaur Dhodi

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE RAJIV SHAKDHER

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J (ORAL)

1. These appeals under Section 130 of the Customs Act, 1962

arise out of the common order dated 26.12.2007 passed by the

Customs, Excise & Service Tax Appellate Tribunal in appeal

Nos. C/412-413/2007-SM(BR). The issue raised in these appeals

relates to the confiscation of two cars both being Toyota Lexus LS 460

imported by the respondents from Japan. The Commissioner of

Customs had, by separate adjudication orders dated 24.05.2007,

confiscated the cars under Section 111(d) of the Customs Act, 1962.

The Commissioner of Customs, however, in the case of J. S. Gujral

imposed a redemption fine of Rs 4 lacs and penalty of Rs 2 lacs

whereas in the case of Mohinder Pal Singh Gujral a redemption fine of

Rs 4.5 lacs and penalty of Rs 1 lac was imposed. Being aggrieved by

the said confiscation orders, the respondents preferred appeals before

the Tribunal. The only ground on which the confiscation was made

was that the importers had not submitted Type Approval Certificate/

COP from the accredited agencies as mentioned in Policy Circular No.

26 dated 09.02.2004 for compliance of Import Licensing Notes of

Chapter 87 para (7). The Commissioner of Customs, therefore, held

that there was non-compliance of the provisions of the import policy

with regard to the import of the said cars.

2. Paragraph (7) of the Import Licensing Notes of Chapter 87

reads as under:-

―(7) Import of new vehicles having an FOB value of US $ 40,000 or more and engine capacity of more than 3000 cc for petrol run vehicle and more than 2500 cc for diesel run vehicles by:

(a) individuals, (b) companies and firms importing under the EPCG Scheme and (c) OEMs (Original Equipment Manufacturers--who have manufacturing and service network in India will be exempt from the conditions at Sl. No. (2)(II)(c) above. However, at the time of Customs clearance, a Type Approval Certificate / COP of an international accredited agency from the country of origin, including a

notarized English translation thereof, shall be furnished. This Type Approval shall stipulate that the vehicle to be imported complies with all the ECE Regulations for the complete vehicle. The accredited agencies have been notified vide Policy Circular No. 26 dated 09.02.2004.‖

A reading of the said provision clearly stipulates that at the time of

customs clearance a Type Approval Certificate / COP of an

international accredited agency from the country of origin, including a

notarized English translation thereof, shall be furnished. It is also a

requirement that the Type Approval Certificate shall stipulate that the

vehicle to be imported complies with all the ECE Regulations. The

said paragraph (7) also indicates that the accredited agencies have been

notified vide Policy Circular No. 26 dated 09.02.2004.

3. The said Policy Circular No. 26 has been issued by the

Directorate General of Foreign Trade, Government of India to all

licensing authorities and to all Commissioners of Customs. The said

Circular notifies the list of international accredited agencies for

issuance of a Type Approval Certificate / COP. The relevant entry for

the purposes of these appeals is at serial No. 33 which pertains to

Japan, which is the country of origin in respect of the said cars. The

said entry indicates the accredited agency as ―Ministry of Land,

Infrastructure and Transport, 2-1-3, Kasumigaseki, Chiyoda-ku Tokyo

100-8918 Japan‖. The telephone and fax numbers are also indicated.

4. From the above it is clear that the respondents were required

to obtain a Type Approval Certificate/ COP from the said Ministry and

from no other authority.

5. In the impugned order it has been noted that both the

respondents had applied to the said Ministry for issuance of the Type

Approval Certificate/COP. Mr J. S. Gujral had written a letter on

07.03.2007 and also sent a reminder on 30.04.2007 whereas Mr M. P.

S. Gujral had written to the said agency on 15.01.2007. The said

Ministry of Land, Infrastructure and Transport, Tokyo, Japan had only

responded to Mr M. P. S. Gujral and no response was given to Mr J. S.

Gujral's letter. The response to Mr M. P. S. Gujral's letter was dated

07.02.2007 wherein the said Ministry stated as under:-

―Japan has its own system of law and regulations related to motor vehicles. We, the Ministry of Land, Infrastructure and Transport, judge if motor vehicles comply with all the Japanese technical standards concerning safety, environment, etc. and grant type designation or type approval for those motor vehicles. Please note that not all the Japanese technical regulations harmonize with the ECE regulations. This means that only a part of the Japanese technical regulations harmonize with the ECE regulations. Therefore, the Japanese

government does not issue a certificate which states that a motor vehicle complies with all ECE regulations. For this reason, we regret to inform you that we can't provide you with the documents you requested for.‖

6. In these circumstances, the Tribunal was of the view that

since the importers had filed their bills of entry only after applying to

the International Accredited Agency and only after the agency had

replied that they would not be in a position to issue the certificate as

required, insisting on the condition stipulated in the said Import Policy

would, therefore, amount to asking the importer to do the impossible.

The Tribunal placed reliance on the maxim -- lex non cogit ad

impossibilia which means that the law cannot ask a person to do the

impossible. We agree with these observations and views of the

Tribunal. As per the Import Policy the importers were required to

obtain the Type Approval Certificate/ COP from the international

accredited agency of the country of origin of the goods. In this case the

cars have been imported from Japan and, therefore, it was only the

Ministry of Land, Infrastructure and Transport which could have issued

the Type Approval Certificate/ COP. The respondents had applied to

the said Ministry for the Type Approval Certificates/ COPs but the

Ministry had flatly refused in so many words. In such a situation the

respondents could not be expected to submit the Type Approval

Certificate/ COP from the said agency. We are, therefore, not inclined

to interfere with the impugned order passed by the Tribunal.

7. Before concluding, we may note that we agree with the

learned counsel for the appellant that the reference to the decisions in

the case of Altaf Shoes Pvt. Ltd v. CC (Imp.), JCH: 2005 (188) ELT

504 (Tri-Mum) and in the case of M/s Metro Palace Hotel Pvt. Ltd v.

Commissioner of Customs decided on 16.01.2006 by the Tribunal, was

not necessary. The decisions in those cases were on entirely different

grounds and circumstances. It was sufficient for the Tribunal to have

arrived at the conclusion that it did on the ground that it was impossible

for the respondents to have fulfilled the condition of submitting the

Type Approval Certificate from the international accredited agency

when the said agency had refused to do so. With these observations the

appeals are dismissed.

BADAR DURREZ AHMED, J

RAJIV SHAKDHER, J October 17, 2008 SR