9911796707
TMI Blog1990 (8) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods have been shipped only on 25-10-1983, whereas, 3 of the Bs/E have been altered to show the date of shipment as 25-3-1983. 3. The licences produced were not valid on the date of shipment. Hence, adjudication proceedings were initiated, by the Collector. The appellant, waived the show cause notice, and participated in the personal hearing granted by the Collector, who thereafter, passed the order confiscating the fabrics absolutely and also imposing penalty of Rs. 5 lakhs under Sec. 112 of the Customs Act. The present appeal is against the aforesaid order of the Collector. 4. Shri Pochkhanawalla, the learned advocate, appearing for the appellant, stated that identical goods viz. lining material imported by the same vessel by M/s East Punjab Traders and others were also subject to similar adjudication proceedings. In those cases, the charge of under-valuation was also there. The matter was taken up in appeal before the Tribunal. The CEGAT Special Bench 'A' in the aforesaid case, reported in 1988 (34) E.L.T. 98 (Tri.), by a majority judgement, have clearly held that the charge of manipulation of Bs/L cannot be held against the importers. The Tribunal has also held that the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd identical. 6. Shri Pochkhanawalla also contended that if it is held that the date of shipment is only 25-10-1983 and not 25-3-1983, they have valid licences (valid at the time of shipment) when the goods were shipped on 25-10-1983. They had also made a plea during the personal hearing before the Collector to consider the acceptance of those licences. But the Collector, unfortunately had not considered this submission. When the appellant has valid licence on the date of shipment, which they are even now having, the Deptt. cannot order confiscation of the goods on the ground that the import is unauthorised. They should have considered acceptance of those licences. Shri Pochkhanawalla, however, could not produce any written submission or evidence to show that they had offered for consideration alternative licences. He also contended that if the valid licences are available for import of lining materials, they should be considered for acceptance in the light of the decision of the Tribunal in the case of East Punjab Traders referred to by him. 7. Shri Arya, on the other hand, contended that the telex No. 523 dated 26-1-1983 from the shipping company clearly indicates that the B/L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r purposes including lining. 9. After hearing both the sides, we find that in this case, the Collector of Customs, Bombay passed the impugned order on 7-2-1984, which was issued on the same date. However, the appeal against the order was filed before the Tribunal only on 6-8-1987. There was a delay of more than 3 years in filing the appeal. This Bench, after considering the application for condonation of delay, rejected the same and in its order No. 1516/87 WRB dated 17-12-1987 rejected the appeal as barred by time. However, the appellant approached the High Court of Bombay by W.P. No. 725 of 1988. The High Court of Bombay, in its order dated 23-3-1988 directed that the petitioner's appeal and stay application before the Tribunal be restored on file and the Tribunal to hear the stay application and the appeal on merits and pass the necessary orders. It was also directed that the Department will not deal with or dispose of the petitioner's goods by public auction or otherwise till the disposal of .the stay application. Thereupon, the Tribunal, on a request made by the Department indicating the aforesaid position, restored the stay application and appeal on file and by its order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssage received by the Department cited in the order-in-original throws a possibility that the amendment of the date of B/L would have been made by the consignee. However, they are not sure about this. It may be that the beneficiary of the amendment may be the appellant. However, in the absence of any positive evidence indicating the appellant's personal involvement in the amendment of the date in the Bs/L, the ratio of the decision cited by the learned advocate would have to be extended and the benefit of doubt has to be given with regard to the penal liability. All the same, the Collector has passed order with regard to certain specific licences. The details of which are also annexed to the order. In the annexure to the order, the date of expiry of the licence including 60 days of the grace period is indicated against each. It is not disputed before us that these licences were not valid on 25-10-1983. Hence, once we take the date of shipment as 25-10-1983, none of the licences produced before the Department can be said to be valid on the date of shipment. Hence, while we hold that none of the licences produced at the time of adjudication was valid on the date of actual shipment, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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