Confiscation and Penalty can’t be Imposed Merely on Ground that Importer of ‘Arms’ was not a ‘Renowned’ Shooter: CESTAT [Read Order]

The Mumbai bench of Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) in Nishant Sanjay Ghogare v. Commissioner of Customs, Airport, Mumbai, set aside an order for confiscation and penalty order and held that it cannot be imposed merely on ground that importer of ‘Arms’ was not a ‘renowned’ Shooter.

The appellant had imported one “Pardini Air Pistol K12 Cal. 177/4.5” through M/s. DHL Express (India) Pvt. Ltd., Mumbai. The department proposed to confiscate the goods by alleging that it is prohibited goods specified as “Arms”and imported without valid Arms licence. Further, after verifying a certificate of membership issued by Precise Shooting Club, Nashik, submitted by the appellant, it ordered for redemption of goods on payment of redemption fine of Rs.25,000/- and penalty of Rs.10,000/- in lieu of confiscation of the imported goods.

On first appeal, the appellate authority remanded the matter with observations about confiscation along with a finding that air pistol is liable for absolute confiscation.

The appellant contended that they claimed benefit of notification 52 dated 21.11.2007 issued by the Ministry of Commerce, which allows import of air pistol by “shooters” registered with the Rifle Club or District/State/National Rifle Association. Further, such lawful import and gave his finding that it can only be imported by “renowned shooters” on the recommendation of National Rifle Association of India and such a certificate was obtained by the appellant much later than passing of the adjudicating order dated 22.09.2014 by the adjudicating authority.

The department contended that during the impugned period free import of arms is permitted to ‘renowned shooters’ only.

The CESTAT, observed that when the First Adjudicating authority, as well as the appellate authority, have accepted the certificate of importer regarding his membership/association with rifle club, instead of allowing free import of 0.177mm gun, the importer was directed and he paid redemption fine as well as penalty in lieu of confiscation, which order itself is irregular. Therefore, there is no point in confiscating the same again by rejecting the claim of the appellant on the ground that he is not a “renowned shooter” at the time of import.

It was also opined that the adjudicating authority has the power to offer redemption of goods, even in respect of prohibited goods.

“A person would become renowned in the field of sports after successful/ repeated participation in that field and in order to participate in the sports like shooting, availability of air gun is a basic requirement and, therefore, notification dated 21.11.2007 clearly distinguishes a “shooter” from “renowned shooter” and import of “Arms” from import of “other Arms” by allowing 0.177 air gun pistols for free import by shooters registered with Rifle Clubs /Association,” the bench said.

Setting aside the order of the first appellate authority, the CESTAT observed that the observation of the FAA that he was not a renowned shooter, was irregular and hence, is invalid. It was also noted that the amended import policy of Arms and Ammunition has amended only the provisions containing the import of arms under which free import of 0.177 air guns/ pistols, which was included in the notification of 2005, has been excluded from the definition of “Arms” in 2012 notification.