TMI Blog1991 (9) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be synthetic rags was imported from Germany in August, 1985 and its clearance was allowed under O.G.L. - Appendix 6 (Item No. 1 List No. 3) Part II of the import policy for 1984-85. The goods were cleared after the usual examination in the docks and the following certificate is recorded on the reverse of bill of entry :- Inspected lot of 54 bales = 131 boras under AC (Docks) supervision with reference to mutilation weighment certificate No. 1139 dated 3-10-1985 and 11-11-1985. Examined 20% thoroughly checked - description verified. They are properly mutilated woollen rags other than synthetic rags, hosiery rags. Verified that they do not contain any serviceable garments. They cannot be economically re-stitched. Declaration verified with reference to Invoice No. 9535 dated 10-6-1985. Released. 3. On receipt of information, the Central Intelligence Unit of the Customs House detained the two lorries carrying these goods after their clearance and, on examination of the goods found that more than 90% of the goods were synthetic rags. Shri M.K. Jain, the Managing Director of the appellant firm, in his statement admitted that it was his deliberate act to take away synthetic rags ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oddy yarn and blankets. We import our raw material mainly woollen rags. However, a few consignments of synthetic rags are imported for the purpose of blending. We have received our consignment of 54 bales of about 25 tons of rags per S.S. Altavia" in August, 1985. We filed Bill of Entry No. 1987/24 dated 21-8-1985 as Self. This Bill of Entry was handled by our employee Mr. I.U. Sheikh who is holding Customs Pass. These goods were not premutilated and therefore, mutilation team ordered the goods to be mutilated. Accordingly, all the goods were mutilated and mutilation Committee has given us the certificate. Duty on goods were paid on 4-10-1985. The goods were examined today. I was not present at the time of examination. I went to shed at about 3.30 PM. I am told by my employee that 54 bales were repacked in 131 boras and delivery was taken by him. By that time our lorry with about 50 boras was already left for factory. Two lorry with total bora 67 were about to leave. At that time Custom Officers came there and inspected the boras on the lorry. It was found to contain synthetic rags against woollen rags. I co-operated with the Department and came to Custom House on instructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he two lorries which were detained. The Panchnama shows that the goods packed in 14 boras out of 67 which were found on the two lorries were examined in the presence of Shri M.K. Jain and the panch witnesses and were found to contain synthetic rags in mutilated condition. 7. Another statement was recorded from Shri M.K. Jain, the Managing Director of the appellant firm, the relevant portions of which are reproduced below :- 2. The goods pertaining to Bill of Entry 1987/24 dated 21-8-1985 stuffed in Lorry No. MHL 3147 and Lorry No. RMM 788 were examined by the Custom Officer under Panchnama. During the course of examination, I was present throughout the day. The customs officers examined 20% of the boras stuffed in both the lorries. The goods were also shown to me and I confirm that 90% of the goods stuffed in both the boras are of synthetic rags as against the declared woollen rags cleared vide Bill of Entry No. 1987/24. I also confirm that I have taken delivery of one lorry on 4-12-1985 which was also containing woollen rags. Since the goods are mixed, it is very difficult to segregate exact percentage of wool and synthetic. However, I am ready to pay the difference in rate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as were thereafter repacked. (emphasis supplied) 9. In view of the fact that the Managing Director of the Company, who was present on the spot had admitted that the correct description of the goods had not been declared and had admitted his liability and had volunteered to pay duty and solicited lenient action, it would indeed be difficult for us to accept a plea which amounts to a total reversal of a stand in the proceedings under the law beginning with the recording of the Managing Director s statement. He had liberty to insist on chemical test and cent-percent examination of the goods at a time when the goods were still available for examination and testing. He not only chose not to exercise this right, but also waived the issue of the Show Cause Notice and even personal hearing before the adjudicating authorities. We cannot, countenance such a situation otherwise it would be making a mockery of the proceedings before quasi-judicial authorities. Further, he cannot also be permitted to take the legal plea that the Deputy Collector had no authority to recover extra duty because the goods had been allowed to be cleared on his declarations woollen rags. From the very circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bill of entry. Therefore, the plea taken by the appellants on this count fails. 10. The other plea taken is that the appellants had no knowledge about the goods shipped till they were examined and therefore, the declaration in the Bill of Entry filed on the basis of documents is not a mis-declaration. We observe that the procedure for assessment of duty as prescribed in Section 17 of the Act and the same is reproduced below for the sake of convenience :- 17. ASSESSMENT OF DUTY. - (1) After an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any leviable on such goods shall, save as otherwise provided in Section 85, be assessed. (3) For the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker s note, policy of insurance, catalogue or other document whereby the duty leviable on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry is found, on examination, to be different from what it is stated in the documents. Under sub-section (4) of Section 46, the importer, while presenting a Bill of Entry is required to make and subscribe to a declaration as to the truth of the contents of the Bill of Entry and to produce, in support of such declaration the invoice relating to the goods. Thus, the two provisions read together cast a duty on the importer to make a true declaration of his goods. The Proviso to sub-section (1) of Section 46 also stipulates a situation in which an importer finding himself unable, for want of full information, to furnish all the particulars of the goods, may request for examination of the goods pending production of such information. If the appellants had any difficulty in making a proper declaration of their goods because of any doubt or otherwise, they could have availed of the facility stipulated in this Proviso. Since the appellants chose to make a declaration based on the documents and their knowledge, it is not open to them subsequently to take the plea that the declaration on the basis of the documents is not a mis-declaration. 12. So far as the goods carried in the two lorrie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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