1. The import which is the subject matter of dispute in this case was effected by Beatitudes Social Welfare Centre in December, 1978 against exemption certificate issued by the Central Government under the provisions of Section 25(2) of the Customs Act, 1962 (hereinafter called "the Act"). It was, however, found to be a case, at the time of clearance, where the description of the goods did not tally with the ad hoc exemption on which the Importer had placed reliance, inasmuch as it was discovered that whereas the exemption was for import of Mercedes Benz Ambulance Vans, the imported vehicle was the Volkswagon (Station wagon). Although initially the party was allowed time to obtain ad hoc exemption relating to the imported goods but since the same was not procured and produced by the stipulated time on 26.6.1979, thereafter a notice to show cause was issued on 5.9.1979 under Section 124 of the Act, to show cause as to why goods should not be confiscated under Section 111(d) of the Act, on the view that there was contravention of the Import Trade Control Regulations inasmuch as the goods had been imported without any import licence, disregarding the prohibition imposed by Clause 3 of the Imports and Exports (Control) Act, 1947 and that this rendered the goods liable for confiscation under the provisions of Section 111(d) of the Act. It was also felt to be a case where the Importer was liable to imposition of penalty under Section 112 of the Act.
2. After the written reply was filed to the Show Cause Notice, the Collector of Customs, Madras gave a personal hearing and thereafter disposed of the matter by his order dated 29.10.1979. Finding it to be a case where the description of the imported goods was entirely different from the one given in the letter dated 30.5.1977, with reference to which ad hoc Exemption Order No. 382 dated 14/16.7.1977 had been given, he held that in view of the fact that the vehicle was not covered by the said ad hoc Exemption Order, a licence for its importation was required and since no licence has been produced, besides being a case of contravention of the provisions of Section 3(1) of the Imports and Exports (Control) Act, 1947 and consequential confiscation under Section 111(d) of the Act, it was also a case where customs duty was fully leviable and party's prayer for its duty free release could not be entertained. The vehicle was accordingly ordered to be confiscated although the Collector thought it to be a fit case to allow redemption of the same on the payment of a fine of Rs. 75,000/- which option was to be exercised within a period of two months from the date of receipt of the order. He also held it to be a case, as already observed, where full customs duty at the rates fixed in the Tariff for such vehicles, was leviable.
3. The Importer carried an appeal against this Order before the Central Board of Excise and Customs and which appeal was disposed of by Member (Judicial) of the Board by his Order No. 746-A of 1980 dated 27.3.1980.
After considering the written submissions made in the Grounds of Appeal and the plea made during hearing by Father Schlooz, Director of the Centre, who pleaded that the Importer was a charitable organisation and the import had been effected as a result of donations having been made from abroad in view of the activities of the Centre which looked after lepers and other destitutes and that the change in description was not of Importer's own volition but because of the donors' finding it difficult to procure the ambulance van which was earlier intimated and that the change was not intentional or mala fide, the learned Member came to the conclusion that strictly speaking, the ad hoc exemption relied upon by the importer did not cover the imported vehicle and to that extent levy of customs duty was unavoidable and to that extent the appeal was dismissed. However, on the point of import having been effected without licence, it was observed that the clearance could be effected even after obtaining licence subsequent to the import and to that extent the want of import licence was not material. The redemption fine was reduced to a token fine of Rs. 1,000/-.
4. The Centre still felt aggrieved and filed a revision before the Secretary to the Government of India, Department of Revenue, Ministry of Finance under Section 131 of the Customs Act, 1962. This revision has been received in the Tribunal by virtue of provisions of Section 131B(2) for disposal, and is being disposed of as an appeal.
5. Shri A.S. Marian, appeared as authorised representative of the appellants whereas Department was represented by Shri A.K. Derashri.
Shri Marian submitted at the time of hearing that this Centre was registered under the Societies Registration Act and was founded in the year 1965 for the purpose of rendering medical aid, nourishment and similar other help to the lepers, handicapped and other destitutes and other poor people and had more than 750 inmates--the number of lepers alone being 400--and the Centre was situated at a distance of about 40 miles from the city and the inmates who are mostly lepers had often to be brought to the City hospitals, for medical treatment and for that purpose, they approached foreign donors and an offer of gift of two Peugot Ambulance Cars was made and on that assumption. Central Government was approached for ad hoc Exemption Order No. 594 dated 14.12.1976 which was re-validated upto 31.8.1977. However, subsequently, it was intimated by the donors that the company manufacturing Peugot Ambulance Cars had expressed inability to supply the same but they still intimated that they were in a position to supply Mercedes Benz Ambulance Cars and it was on this account that they again approached the Central Government for modification of the Exemption Order which was granted by means of Exemption Order No. 382 dated 14.7.1977. They had taken remedial action for obtaining CCP which was also granted. He further submitted that one Mercedes Ambulance Van was even received and cleared but as against the second what arrived eventually was a Volkswagon. He pointed out that there had been no intentional or deliberate default on their part, and that the matter of the nature or make of the vehicle, was beyond their control and it was the convenience of the donors and whatever was available had been sent and since substantial ad hoc exemption was for two Ambulance Vans, a technical view was not justified keeping in view of the object with which the imported vehicle had been gifted and received. He also made reference to some correspondence when they had, in the meantime, approached the Chief Controller of Imports & Exports for fresh CCP but in the meantime, the vehicle had arrived and that there was only a technical lapse and that they even approached the Central Government for ad hoc exemption with reference to this particular vehicle but the same was also declined again on a technical view that the import having already taken place and the Bill of Entry having been filed, the ad hoc exemption could not be given with retrospective effect.
6. Shri Derashri, learned Departmental Representative, pointed out that this was a case where the imported vehicle was not duty-free as such, and it was not a case for general notification under Section 25(1) of the Act but only exemption from payment of Customs Duty was given as a special case in exercise of the discretion under Section 25(2) of the Act and that could be utilised only with reference to the specific goods covered by the said Exemption Order. He also made reference to the Collector's observations that the imported vehicle was not even an Ambulance Van proper and that the make and description were different and that the clearance had been rightly disallowed by the Customs authority without payment of duty. He also justified the order as to confiscation of goods for want of an import licence in relation to this vehicle. He also stated that since the Board had already taken a lenient view in the matter, there was no further scope for any leniency on this account.
7. We have given our very careful and anxious thought to the matter, being alive to the fact that the appellant before us is a philanthropic organisation established for the service of lepers and other destitutes and here was a case where a gift had been made by a foreign country presumably in recognition of the humanitarian service being rendered by the Centre and we also find that the Board had held that the Collector's observations that the vehicle did not strictly answer the description of Ambulance Van, was not very relevant or material, and that import licence can be obtained even after the import, for getting clearance, but still we are constrained to observe that so far as ad hoc exemption obtained by the appellant is concerned that strictly related to a different type of vehicle. We find force in the contention of the learned Departmental Representative that this being a case of dutiable item unless the ad hoc exemption specifically covered this vehicle, that exemption order could not he taken into consideration. It may be a hard case but being bound by the provisions of law, we find no escape for the appellant from the liability to pay customs duty for getting the vehicle cleared from customs. The confiscation is also justified on technical grounds, and there being already substantial reduction in the redemption fine and the same having been reduced only to a token sum of Rs. 1,000/-, we find no further scope for interference on this account. We have, therefore, no option but to dismiss the appeal.