TMI Blog1989 (2) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(a) of the Customs Act. 2. Brief facts of the case for the purpose of disposal of this appeal can be stated as below: 3. The appellants filed three Bills of Entry declaring the goods in three containers as Dicyandiamide 98%. These three Bs of E were assessed on the basis of declaration, on second check basis on 3-3-1987. However, on receipt of certain intelligence, the officers of the SIIB kept a watch on different consignments of chemicals imported by the appellants. The intelligence is reported to be to the effect that the appellants firm have imported three consignments declared to contain Dicyandiamide but actually contained some other costly chemicals. The Bills of Entry, thereafter were taken by the Special Investigation Branch o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime only on 15-4-1987. Immediately on 16-4-1987 they wrote to the suppliers about the fact of customs detention and also that the goods on test were found to be citric acid instead of Dicyandiamide. Their suppliers in their telex dated 25-7-1987, however, contended that they had supplied only Dicyandiamide and citric acid is more expensive than Dicyandiamide and no supplier would like to lose money; since the goods were supplied on sight draft payment basis, the suppliers threatened them with legal proceedings, if the documents were not retired. Finally the manufacturers in their telex have agreed for re-shipment of the goods and in regard to re-shipment expenses the appellants were discussed that the suppliers may be contacted. It was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector s findings, there is no discussion as to whether they had mala fide in mis-declaration and this aspect has not been specifically discussed. The Collector has gone on the presumption that since the goods are liable for confiscation under Section 111(d) and 111(m) of the Customs Act, for having imported mis-declared goods, they are liable for penalty. The case of the appellants, according to Shri Deshpande, is that they had bona fide imported Dicyandiamide and if some other goods have been despatched by the suppliers, they should not be held to be liable. Thus he contended that absolute confiscation and penalty are not warranted. The appellants would not have any objection to redeem the goods for re-export on payment of nominal fine, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Letter of Credit. This also goes to show that they had tried to get the goods into the country on a no risk basis. Once their attempt failed because of the specific information gathered by the Customs authorities, they now come forward with the plea that they have taken up the matter with the suppliers. 6. After hearing both sides and perusing the available records, the issues to be considered by us are the following: (i) Whether the goods are liable for confiscation for mis-declaration and for having been imported without a valid licence. (ii) If so, whether the absolute confiscation is justifiable and the request for re-export is to be permitted. (iii) Whether, the appellants are liable for penalty under Section 112(a) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the appellants with regard to this import. It is, no doubt, true, as pointed by Sh. Deshpande that the department has not produced any document to show that there was some understanding between the suppliers and the appellants in regard to the despatch of the goods under a wrong description. It has been vehemently argued that there is no direct evidence to establish that the appellants have mis-declared the description of the goods. The documents cited by Sh. Deshpande, no doubt, indicate that the appellants placed the order for Dicyandiamide. All the same they have not challenged at all the test report of the Customs House in respect of these three consignments; The Customs House was in receipt of a specific intelligence, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical than the Dicyandiamide and they would not be willing to lose the money involved in the difference in values of these two items. The manufacturer in his telex contends as below: Regret cannot accept your statement without any test reports stop also goods sold to Neptune long back so they are owners now stop if you are unable to accept goods may be best solution to reship back to Hongkong but you will have to work out with Neptune regarding re-shipment expenses and other related charged. Thus neither the manufacturer s telex nor the supplier s telex either confirmed wrong despatch of the goods or furnished any positive proof that the goods are only Dicyandiamide and not citric acid. It cannot also be accepted that the consignment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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