Equivalent Citation: 2003(90)ECC190, 2003(162)ELT462(Tri-Mumbai)

IN THE CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL

WEST ZONAL BENCH, MUMBAI
Appeal No. C/329/2002-Mum [Arising out of Order-in-Appeal No. 6/2002 AP
Misc (Air) Dated 7.1.2002 Passed by the Commissioner of Customs
(Appeals), Mumbai]
Decided On: 01.04.2003
Appellants: Nikunj Exim Enterprises
Vs.
Respondent: Commissioner of Customs (Import)
Hon'ble Judges:
Krishna Kumar (J) and C. Satapathy (T), Members
Counsels:
For Appellant/Petitioner/Plaintiff: J.C. Patel, Adv.
For Respondents/Defendant: Virag Gupta, JDR
Subject: Customs
Acts/Rules/Orders:
Customs Law; Arms Act, 1959
Disposition:
Appeal dismissed
ORDER
C. Satapathy, Member (T)
1. This is a case of import of Bullet Proof Jacket. The Additional
Commissioner has absolutely confiscated the Bullet Proof Jacket holding
the same to be an article under the Arms and Ammunition Act, 1959 and,
therefore, its import unauthorized in view of the Notification No. 40/70
dtd. 6.6.1970. He has also imposed a personal penalty of Rs. 7,000 on the
appellants and has noted that there is no evidence on record to show that
the goods have been imported for Maharashtra Police as claimed by the
importers.
2. Shri J.C. Patel, learned Advocate for the appellants states that according
to import policy against I.T.C.H.S. sub-heading 630720.00, Bullet Proof
Jacket which is a life jacket is allowed free. He also contends that Bullet

Proof Jacket is neither an instrument nor a device and, therefore, the same
cannot be considered as arms to attract Notification No. 40/70. He also
challenges the valuation adopted by the lower authorities and states that
no penalty can be imposed as the import is made for supplying the same
as sample against a tender from Maharashtra Police.
3. Shri Virag Gupta, learned J.D.R. appearing for the department states
that import of arms and ammunition as defined in Arms Act, 1959 is
absolutely prohibited under M.F. (D.R.I.) Notification No. 40-Customs dtd.
6.6.1970. He states that the definition of arms under the Arms Act is wide
and it includes articles designed or adopted for both for offence as well as
for defence. The Bullet Proof Jacket being an article used for defence
according to him is covered under the Arms Act and it is the practice not
to allow import of such Bullet Proof Jacket except by the Government
authorities. He further points to finding in the order in original that as per
the Concise Oxford Dictionary weapon is defined as "A means employed
for trying to gain advantage in conflict" which the Bullet Proof Jacket
satisfies. He therefore supports the orders passed by the lower
authorities.
4. After hearing rival submissions and perusal of case records, we find that
there are contradictory provisions in regard to import of Bullet Proof Jacket
under the Import Trade provision and Customs Law. We find that the
import of all life Jackets and life belts have been made free under I.T.C.H.S
sub-heading No. 630720.00 without making any exception for Bullet Proof
Jackets. If it is the clear intention of the Government that Bullet Proof
Jackets should not be imported except by the Government Authority or
that it may not be misused by terrorists and other antisocial elements,
then a suitable exemption under the said I.T.C.H.S. sub-heading
630720.00 must be carved out. However, we find that Bullet Proof Jacket
as an article of defence can be covered under the definition of Arms given
in the Arms Act, 1959 and consequently its import can be considered to
be absolutely prohibited under Notification No. 40-Cus dtd. 6.6.1970.
Moreover, we find that the importers have not been able to satisfy the
Custom authorities that the Bullet Proof Jacket in question was indeed
imported for the Maharashtra police in the absence of any proof from the
police department. As such, we uphold the absolute confiscation of the
Bullet Proof Jacket in question ordered by the lower authorities. In view of
the fact that we are upholding the absolutely confiscation, we do not think
it necessary to give a finding on the valuation of the impugned good as
that will be purely of academic interest.
5. Since there are contradictory provisions on importability of the Bullet
Proof Jackets under the import policy and the customs law, we think it is a
fit case for waiving the penalty imposed on the appellants.
6. Appeal is dismissed except for waiver of penalty as indicated above.