Page 229 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] V.V. MINERAL v. COMMISSIONER OF CUSTOMS, COCHIN 619
5.3 The next submission of the Counsel for the appellant is that the
Commissioner has considered the impugned goods as prohibited goods in terms
of Section 2(33) of the Customs Act but the said section was not at all invoked or
mentioned anywhere in the show cause notice and therefore the order of confis-
cation is not legal. He further submitted that the absolute confiscation of the im-
pugned goods under Section 2(39) of the Customs Act considering the same as
prohibited on the ground that the same has been attempted to be exported in
violation of any other law for the time being in force. He further submitted that
the confiscation order has been passed by mainly relying upon the Trade Facility
Notice No. 13/2016, dated 22-12-2016 issued by the Commissioner of Customs
and the Minutes of the District Level Committee meeting forwarded by the Dis-
trict Collector of Tirunelveli, Section 4(1) of the MMDR Act, 1957 and Rule 6 of
the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of
Minerals and Mineral Dealers Rules, 2011. According to the Counsel, these in-
structions could not be construed as any other law in force because the said in-
structions do not have the force of the law as far as the Customs authorities are
concerned. He further submitted that in the present case, the requirement of local
District Collector’s certificate, transit permits are not notified by the Central Gov-
ernment under Section 11(3) of the Customs Act. He also submitted that the im-
pugned order is self-contradictory because in the order portion, the Commis-
sioner has observed that he refrained from redeeming the Garnet sand already
exported under 16 shipping bills, on the ground that they are not physically
available for confiscation whereas the Commissioner has absolutely confiscated
the Garnet sand physically available in the Cochin port covered by 14 shipping
bills without giving the redemption option. He further relied upon the following
decisions :-
(i) Yakub Ibrahim Yusuf v. CC, Mumbai [2011 (263) E.L.T. 685 (Tri. -
Mumbai)]
(ii) CC (Preventive) v. Uma Shankar Verma [2000 (120) E.L.T. 322 (Cal.)]
wherein it has been held that if the goods are not prohibited, then the same are
liable to be released on payment of redemption fine and should not be absolutely
confiscated.
6. On the other hand, the Learned AR defended the impugned order
and submitted that the impugned goods were found to be prohibited goods on
account of the restriction imposed by the Trade Facility Circular issued by the
Commissioner of Customs as well as instructions issued by the Government of
Tamil Nadu in 2013. He further submitted that in the present case, the appellant
could not produce the certificate of legally mined minerals from the concerned
District Collector/transport permits from the District authorities and that is why
the goods were confiscated. He further submitted that if the same goods have
already been exported as alleged by the appellant during the same period, it
cannot be held that the impugned goods should also be allowed to be exported
once it has come to the notice of the Customs that the goods are prohibited. He
further submitted that it is not only the Customs Act which is being implement-
ed by the customs authorities but other allied Acts have also to be implemented
by the customs authorities while discharging their function. In support of his
submission, he relied upon the following decisions :-
(i) Nickunj Shah, Nickunj Eximp Enterprise Pvt. Ltd., Piyush Sanghavi v.
CC, (Export), ACC, Mumbai [2015 (2) TMI 825 - CESTAT Mumbai =
2015 (316) E.L.T. 291 (Tri.-Mumbai)]
EXCISE LAW TIMES  15th May 2020  229