TMI Blog1989 (10) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... r their offer. The exporters vide their letter dated 30.4.85 offered the appellants the said quantity of fibre at USSI 45 kg and informed them that they were awaiting their orders. The appellants vide their letter dated 20.5.85 requested the exporters to ship 4 containers at US $ 1.80 Kg on CAD basis and that they will pay against their documents. The exporters, as a special case, vide their letter dated 15.6.85 agreed to send the goods and sent their indent for 4 containers and also their invoice/contract No. SM-48 dated 15.6.85. The contract was registered on 25.6.85 to the Ministry of Commerce. The contract was for the first quality Viscose Staple fibre off white semi-dull 1.5 Denier 51 mm at 1.12 US $ per Kg. The exporters also sent the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn and sent to the Chief Examiner for test and the chemical test revealed that 132 bales out of 154 bales did not correspond with the goods mentioned in IGM and their description had thus been misdeclared and the appellants tried to.evade customs duty of Rs. 17,08,000/- and the goods valued at Rs. 5,60,000/- were liable for confiscation. The statement of Shri Yashpal Prop. of the appellants had been recorded who had stated before the Investigation Agency that the goods were not according to the order booked, he refused to accept the goods and surrendered the goods as abandoned to the Customs and stated that the case may be adjudicated without issue of a show cause notice. 4. After the issue of the show cause notice, the appellants file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the letter dated 21.10.85 and 20.3.86. The appellants submitted that the Asstt. Collector after receiving all this correspondence had issued the show cause notice. They submitted that they had not committed any misdeclaration of the goods as they had not filed Bill of Entry and question of their action being proceeded against them did not arise. 5. The Collector of Customs after holding the proceedings of the appellants as well as the Shipping Corporation, passed the impugned order. The Collector of Customs in the impugned order confiscated 154 bales of Polyester fibre and Viscose Staple fibre contained in the said containers as unauthorised under Sections 111-F and 119 of Customs Act but however, giving the option to the appellants u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confirmed by the supplier only on 14.10.85 i.e. after about two and a half months. If it were a genuine mistake, it would have been intimated to the importers immediately after shipment without taking such a long time since it involved the question of adjustment of payment on account of the differential price and also extra expenses on account of freight. The delay in intimating the wrong shipment to the importer is not understandable and appears to be an afterthought" The Addl. Collector has held that it has been a deliberate act on the part of the appellants and in order to establish their ignorance had taken up these defences. 8. Shri Y.N. Chopra Consultant appearing for the appellants, submitted that the appellants had not filed Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter dated 21.10.85 and there were reasons to disbelieve the appellants. The Addl. Collector was justified in imposing the penalty ofRs. 2.5 lakhs as the value of the goods was more than Rs. 15 lakhs. He reiterated that the reasoning of the Addl. Collector was correct and sought for upholding the impugned order. 10. We have heard both the sides and carefully examined the records. The Addl Collector has admitted in the impugned order as extracted (supra) that the Department could not produce any document to show that the importer had manipulated the transaction to import polyester fibre or had full knowledge of polyester fibre actually shipped by them but the Addl. Collector however, did not accept the statement of the appellants and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, 1955 which is deemed to be a contravention of Section 11 of the Customs Act, 1962, cannot be upheld. The contravention of these sections would arise when the appellants would have presented the Bill of Entry and made all arrangements for clearance of the goods with wilful intention of importing wrong goods. The appellants have acted very fairly and refused to clear the goods. The Addl. Collector had drawn certain conclusions without any basis. He clearly admits that the Department has not produced any documents to prove the manipulation of the transaction to import the goods, and that be the case, the contravention of the above sections is not sustainable. Suspicion however, grave cannot take the place of proof. In this case, even such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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