9911796707
TMI Blog1989 (12) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... short accounted and not re-exported within the stipulated time under Section 111(d), 111(j) and 111(o) of the Customs Act, 1962 read with Section 3 of the Import Export Trade (Control) Act, 1947 and imposing a fine of Rs. 5 lakhs in lieu of confiscation. 3. Appeal No. 2381/88-C has been filed against the order dated 17-5-1988 of the Additional Collector of Customs, imposing a duty of Rs. 80,27,787.33 on the 19,509 empty cement bags. 4. The facts of the case are briefly as follows :- The appellants, M/s. Mazagon Docks Limited, Mangalore, a sub-division of MDL, Bombay, holders of Customs Bonded Warehouse licence and manufacture in a Bonded Warehouse licence (issued for purchasing of raw materials and exporting them out of India after manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Act, 1947 and Section 3 of the Import Trade Control Order, 1955 and the Schedule thereunder), the import was held to be unauthorised. 6. On 14-1-1987, a show cause notice under Section 124 of the Customs Act was issued to the appellants for alleged violation of several provisions of the Customs Act and Import Trade Control Order. 7. After adjudication, the impugned order dated 31-3-1987 was passed, confiscating 19,509 bags short accounted and not re-exported within the prescribed time-limit under Section 111(d), 111(j) and 111(o) of the Customs Act, 1962, read with Section 3 of the Import Export Trade (Control) Act, 1947 and imposing a fine of Rs. 5 lakhs in lieu of confiscation as the goods were not available for confiscation. The orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able for confiscation. Sec. 125 reads as follows: "Section 125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch price is reflected in the relevant bill of entry. The telex sent by the foreign supplier quoting the price per bag as US $ 26 is by way of reply to the appellants' telex of 15th December, 1983 which reads as follows : "Please telex the value of returnable polypropylene bags immediately since the same is required for Customs Purpose to clear the same". This valuation has been accepted as assessable value under Section 14(1)(a) of the Customs Act, 1962. Learned Counsel for the appellants submits that the value fixed at US $ 26 per bag is in error and urges that the value of Rs. 50/- per bag (as fixed for 210 bags cleared for home consumption) should be accepted or in the alternative, the value of US $ 10 per bag as quoted in the invoice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price per bag is US $ 10, is in the form of a reminder to the appellants, requesting return of empty jumbo bags to UAE for re-filling according to the terms and conditions of the contract. The letter refers to an earlier letter of 19-5-1985 and several telexes and reads: "since the bags are not being returned, we have no option but to claim compensation." The enclosure to that letter mentions the cost of each bag as US $ 10. This letter has been written at a point of time much beyond the date of the shipment of the last consignment i.e. 6 months therefrom. 16. On the other hand the Customs authorities have relied upon the appellants' own valuation at the time of import i.e. at the relevant time, based upon the supplier's telex of December, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of the proviso to Notification 97/79-Cus., dated 2-5-1979. The bond executed by the appellants (guaranteeing re-export) is also not before us to enable us to arrive at any conclusion on the issue of limitation. The question whether limitation is applicable at all in this case is also to be examined.
20. In the light of the above discussion we remand the matter to the Assistant Collector for de novo adjudication on the issue of whether the demand for duty on the cement bags is time-barred or within time. The Assistant Collector is directed to pass orders within 3 months from the date of receipt of this order after affording a personal hearing to the appellants.
21. The appeals are disposed of accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
|
