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2019 (7) TMI 1657 - AT - CustomsSmuggling - Confiscation of goods - 200 Units of Portable Power Generator - import without a valid Certificate of type approval as prescribed under GSR 535 E dated 07.08.2013 and for being not declared in BL and IGM - HELD THAT:- The present importer M/s.Al Burhan International, Kolkata-700001 imported a consignment of 440 kerosene water pumps. They were yet to file a bill of entry to clear the consignment. During the same time, SIB was investigating into imports of portable power generators in garb of kerosene water pumps. They had registered a few cases and had issued an alert circular. In the instant case, the importer claims that after receipt of goods they received the import documents wherein they found that the consignment consists of 200 portable power generators, which they had not ordered. They approached the Import Noting Section and requested for amendment in the IGM to include 200 pcs. Of portable power generators. Sensing that the importer might have fraudulent intention, the Import Noting Section did not permit amendment to the IGM - the redemption fine and penalty on Reexport of goods is not imposable under Sections 125 and 112 of Customs Act, 1962 when supplier confessed mistake and agreed to bear expenses for export due to wrong shipment by foreign supplier and no mala fide on part of respondent as has been held in the case of REGAL IMPEX VERSUS C.C., ICD, TKD, NEW DELHI [2015 (10) TMI 2259 - CESTAT NEW DELHI]). The Tribunal in this case has held that when goods found other than what was ordered and on persuasion of the importers the overseas supplier admitted that goods are wrongly shipped, the charges of mis-declaration on the importers is not sustainable - Hence, applying the ratio of the above judgement when the respondent is not claiming the goods due to wrong supply is not liable to penalty under any circumstance and accordingly, the order imposing penalty on the respondent is liable to be set aside. The departmental appeal has been preferred on the grounds that goods were not confiscated under Section 111(d) and 111(f) and 119 of Customs Act, 1962. Also, against the Order-in-Original, the respondent had also preferred an appeal, which was allowed vide Order-in-Appeal No.Kol/Cus/Port/AA/733/2017 dated 03.07.2017, setting aside the order of the adjudicating authority. Hence, the appeal filed by the department is not maintainable and liable to be rejected. Appeal dismissed - decided against Revenue.
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