TMI Blog2005 (4) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... hat even in case where the description was changed either in the invoices or in the bill of lading or the Import Manifest, the same was not sufficient to call for confiscation liability of the goods u/s 111(m) of the Act. In our view, the aspect of Section 111(m) of the Customs Act, 1962, has been directly and squarely covered by the Judgment of this Court in the case of Pacific International Traders [ 2002 (1) TMI 1305 - SC ORDER] . The learned second Judicial Member of CESTAT had referred to the case of Dynacast Industries v. C.C.(P) [ 1999 (1) TMI 192 - CEGAT, MUMBAI] . As long as no bill of entry was filed, as contemplated by Clause (m) of Section 111 of the Customs Act, 1962, the goods could not be said to have not corresponded in respect of value shown with the said entry, in the bill of entry. The CESTAT, was again right in holding that as confiscation could not be upheld, there could be no cause or penal action as well u/s 112 of the Customs Act, 1962. After having considered the Judgment of CESTAT dated 13-8-2004, in our view, the first question (a) does not arise and question (b) has been rightly answered by the learned CESTAT by considering the law laid down by the Honor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch merited classification under Customs Tariff Heading No. 6001.92, attracting higher rate of duty and its CIF value was US $ 0.80 per metre as against US $ 0.70 shown on the said Import Manifests. 4. Meantime, the respondent who was the supplier of the said consignments in the name of M/s. R.T. Co. and Ruchitra Impex, wrote a letter dated 11-4-2001, addressed to the Commissioner of Customs, Goa, for permission to re-export the said consignment on the ground that the consignees had refused to retire the documents from the bank and appointed M/s. Varun Freight Forwarders to represent on their behalf for clearance of the same. The Addl. Director thereafter issued show cause notices to the said M/s. R.T. Co., and M/s. Ruchitra Impex dated 19-4-2000, to show cause as to why the said consignments should not be confiscated under Section 111(m) of the Customs Act, 1962; should not be described as dyed wrapped, cut and piled fabrics (short piles) wholly made of Polyester Filament Yarn , meriting classification under Customs Tariff Heading 6001.92 as against their classification of Polyester knit fabrics meriting classification under Customs Tariff Heading 6002.43; the declared CIF value sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odus operandi similar to the other importer M/s. Ayesha Exports and M/s. Kazal Impex and, therefore, proceeded to order confiscation of the said goods; imposed penalty of Rs. 73,00,000/ on the respondent (in the case of R.T. Co.,) and Rs. 42,00,000/ (in the case of Ruchitra Impex) and allowed redemption of the said goods on the payment of redemption fine of Rs. 73,00,000/ and Rs. 42,00,000/ respectively. 7. The respondent M/s. Kabul Textiles Limited, having carried an appeal to the CESTAT, the same was allowed by Order dated 13-8-2004 [2004 (174) E.L.T. 470 (Tri.-Mumbai)]. Initially there was divergence of opinion between Member (technical) and Member (judicial) but after it was referred to the third Member (judicial), the third Member concurred with the Member (technical). 8. The learned CESTAT referred to Section 111(d) of the Customs Act, 1962 and found that there was no prohibition on the import of actual goods as found in this case or was shown to be existing under the Exim Policy. As regards to Section 111(m) of the Customs Act, 1962, the learned CESTAT referred to the case of Union of India v. Sampat Raj Dugar [1992 (58) E.L.T. 163], and held that the respondent was to be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case had no Code Number assigned to them. However, we must hasten to say that a plea in terms of Section 111(d) of the Customs Act, 1962, read with either Section 7 or Section 11 of the Foreign Trade (Development and Regulations) Act, 1992, was a matter on which the learned Commissioner of Customs and Central Excise himself was silent in the show cause notice, though he held that there was a violation of Section 111(d) of the Customs Act, 1962. In fact the learned CESTAT rightly observed that no notice of confiscation of goods was issued under Section 111(d) of the Customs Act. Both the authorities below have proceeded on the assumption that there was no restriction whatsoever as regards the import of the said goods and the said goods were freely importable. 11. The Revenue cannot be allowed to contend for the first time in second appeals that the goods were sought to be imported in violation of Section 7 or Section 11 of the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade (Regulations) Rules, 1993. Section 130 of the Customs Act, 1962 is in pari materia with Section 100, C.P.C., and the Honorable Supreme Court in the case of Santosh Hazari v. Puru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held by the CESTAT, the word Entry has been defined in sub-section (16) of Section 2 of the Customs Act, 1962, to mean in relation to goods, an entry made in a bill of entry, shipping bill or bill of export and includes in the case of goods imported or to be exported by post, the entry referred to in Section 82 or the entry made under the regulations made under Section 84. 16. Admittedly, the respondent M/s. Kabul Textiles were not issued with any notice to show cause alleging that they were a party to any conspiracy with the importers to evade any customs duty. It is quite probable that at the request of the said Daulat, the respondent agreed to change the invoices/Import Manifest thereby altering the description of the goods but, as rightly held by the CESTAT, the same is insufficient to invoke sub-section (m) of Section 111 of Customs Act, 1962, as the word Entry in the said sub-section is restricted to a bill of entry which was admittedly not filed in the present case. The CESTAT was therefore right in concluding that even in case where the description was changed either in the invoices or in the bill of lading or the Import Manifest, the same was not sufficient to call for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed any right, title or interest to the goods nor have presented bill of entry or any import document claiming the goods from the date of detention and hence it would not be legal and proper on the part of the respondents to detain the goods which are abandoned by the consignee. In our view, the aspect of Section 111(m) of the Customs Act, 1962, has been directly and squarely covered by the Judgment of this Court in the case of Pacific International Traders (supra). The learned second Judicial Member of CESTAT had referred to the case of Dynacast Industries v. C.C.(P) [1999 (113) E.L.T. 524 (T)], wherein the CESTAT had held the same view. In our view, the CESTAT rightly distinguished the case of Commissioner of Customs v. Grand Prime Ltd., as not applicable to the facts in that the goods i.e. raw silk was restricted and could be imported only against licence unlike in this case where both the authorities below have come to the conclusion that the goods were freely importable. As long as no bill of entry was filed, as contemplated by Clause (m) of Section 111 of the Customs Act, 1962, the goods could not be said to have not corresponded in respect of value shown with the said en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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