Page 231 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] V.V. MINERAL v. COMMISSIONER OF CUSTOMS, COCHIN 621
from the concerned District Collector of Tamil Nadu whereas the impugned
minerals have been legally mined in the State of Andhra Pradesh. How the Dis-
trict Collector of Tamil Nadu can issue a certificate of legally mined minerals
which have not been legally mined there and has been legally mined in Andhra
Pradesh. Further there is no requirement in the State of Andhra Pradesh to issue
a certificate by the concerned District Collector. The Commissioner has relied
upon the Trade Facility which is not in existence when the shipping bills were
filed. Therefore the impugned order is wrong to that extent also. Further the
Commissioner has held that the appellant did not produce transport permits
from Tirunelveli to Cochin. This transport permit is not required because when
the goods are moved under the provisions of Customs Act, only customs permit
is required and local mining authorities permit is not required as held in the case
of Shreeji Transport Services (P) Ltd. cited supra. Further I find that during the
same period, identical goods were allowed to be exported under 16 shipping
bills without any objection by the same Customs authorities after a proper exam-
ination and verification and the impugned goods have been absolutely confiscat-
ed on the basis of instructions issued by the Tamil Nadu Government as well as
Trade Facility Circular issued by the Customs House, Cochin and that too after
the filing the shipping bills.
7.3 As far as absolute confiscation of the impugned goods is concerned,
I find that as per the policy prevalent during the relevant time, the natural garnet
was freely exportable and importable without any restriction. Further I find that
the DGFT has issued a Notification No. 26/2015-2020, dated 21-8-2018 canalising
the export of beach sand minerals through M/s. Indian Rare Earths Ltd. and the
appellants are now legally not authorized to export the said goods. Once the
goods are found to be not prohibited, then it is mandatory for the Customs au-
thorities to release the same on payment of redemption fine if there is a violation
of any conditions prescribed by any other law in force. Whereas in the present
case, according to my considered view, appellant has not violated the provisions
of Customs Act and has purchased the legally mined Garnet from M/s.
Transworld Garnet India (P) Ltd. Further I rely upon the ratio of the decision in
the case of CC v. Uma Shankar Verma wherein the Hon’ble High Court of Culcutta
after considering the provision of Section 125 of the Customs Act has observed in
para 10 as under :-
10. A bare perusal of the said provision leaves no manner of doubt that if
the goods are prohibited then the option is with the Customs Authority to
confiscate without giving any option to pay fine in lieu thereof but the
goods are not prohibited then the Customs Authority has no other option
but to allow grant of an option to the party to pay a fine in lieu of confisca-
tion.
8. In view of my discussion above, I am of the considered opinion that
the impugned order is not sustainable in law as the same has been passed with-
out following the principles of natural justice and without considering the doc-
uments produced by the appellant justifying the legally mined minerals. Conse-
quently, I set aside the impugned order and direct the Customs authorities, Co-
chin to release the impugned goods to the appellant because the same cannot be
exported by the appellant in view of the DGFT Notification No. 26/2015-2020,
dated 21-8-2018.
9. In the result, appeal filed by the appellant is allowed. Early hearing
application also gets disposed of.
(Order was pronounced in open Court on 28-11-2019)
_______
EXCISE LAW TIMES  15th May 2020  231