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TMI Blog1991 (5) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination of the goods and inspection of the representative sample drawn on original bill of entry it is observed that labels of different make and size have been jumbled together without packing them in a marketable condition. It was also stated that on perusal of the correspondence submitted, it appeared that the goods were "stock sale" items. It was the case of the department that these imported by the appellants are disposal goods. Therefore, it appeared to the department that the appellants could not produce any valid ITC licence to cover the goods, and on the absence of valid import licence the import of the subject goods appeared to be unauthorized under Section 3 of Import and Export (Control) Act, 1947, read with Section 11 of the Customs Act, 1962. In this regard a show cause notice was issued to the appellants with respect to these two imports requiring them to show cause as to why the goods should not be confiscated and penalty should not be imposed on them. The appellant replied the show cause notices and stated that these goods are not disposal goods and that they are stock lot goods. Thereafter, a personal hearing was granted by the learned Assistant Collector, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also bound to be much lesser than the price of the originally ordered materials. It was contended that these are not old nor recognisable as disposal goods. It was his contention that these are well packed in orderly fashion for marketable purposes and the goods cannot come under the category of disposal goods. Shri Roy, Advocate, contended that the department had supplied the appellant and invoice No. FR/74, dated 10th May, 1989. He contended that the contention of the department is that, in this invoice similar goods were stated to be ten times the value of the goods imported by the appellants. He pointed out that in this invoice in 2/3 cases the unit price was mentioned as .15 HK $ and in other case the unit price was mentioned as 1.50 HK $. Shri Roy therefore pointed out that in this very same invoice the difference of price is to the tune of ten times the value, as far as the same goods are concerned. He, therefore, contended that this fact that the appellant got the materials at a lower price cannot be a factor to come to the conclusion that the goods in question are disposal goods. It was his contention that the expression "disposal goods" is used as contradistinction to ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his contention that there is no evidence adduced by the department that the supplier intended to get rid of the goods "as is" and "where is" basis. 6. Replying to the above said contentions the learned Senior Departmental Representative, Shri M.N. Biswas contended that he could not find the word `stock lot' in the dictionary. On perusal of the dictionary he stated that the word `jot lot' is mentioned therein. He contended that these two terms are synonymous. Shri Biswas therefore contended that `job lot' is defined in the dictionary as a collection of goods and ends specially for sale as one lot, and there is another meaning also in the dictionary to the effect as in collection of inferior quality. He, therefore, contended that in this case these goods in question are collection of odds and ends meant specially for sale as one lot. He contended that the party concerned in order to cover up clandestine dealing can always describe the goods stock lot. Shri Biswas contended that in order to find out whether the goods are disposal goods several circumstances available in this case are to be looked into conjointly. In the first instance he pointed out that these goods are not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the exporter has also used the word `stock lot' in their correspondence. Shri Biswas pointed out that the party i.e., the appellant knew about the case of the department that these goods are jumbled together and, that is why, the appellant contended before the learned A.C. that these were not jumbled together, and in this connection he drew my attention to the relevant portion of the order passed by the Assistant Collector in this case. He also contended that both the show cause notices with respect to the consignments were issued on the same day, but in one show cause notice this allegation of the jumbling of the packet was not there, but in other show cause notice this allegation was mentioned by the department. 7. With respect to the decisions that were relied on by the learned Advocate, Shri Roy, Shri Biswas, SDR, stated that those decisions are distinguishable from the facts of this case. In the decision reported in 1981 (8) E.L.T. 936, Bombay the goods imported were pipes and tubes and the only allegation was that they were not uniform size and type. He contended that in that case the question of packing was not involved. In the decision reported in 1986 (25) 535 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show cause notice concerning Appeal No. C-126/90 it was stated that the goods are jumbled together without packing them in marketable condition. But the appellant had sent a reply to the show cause notice and in the reply the appellant had stated to re-examine the imported consignment by the Assistant Collector, Docks, for establishing that the imported labels are not only new but are also appropriately packed, and that each variety is either packed in reels separately or placed in poly packs and unlike the disposal goods, they are marketable and not jumbled together in disorderly manner. But this request of the appellant was not at all considered by the authorities below. But the learned SDR contended that the appellant did not press this point before the original adjudicating authority. This argument cannot be accepted for the simple reason that the appellant had pressed this point in his reply, and it was for the authorities concerned to examine the same in view of the objection taken by the appellant in this regard. The appellant can only make a request and the appellant made such a contention even before the Collector (Appeals). When such a contention is made by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of storage would be more than the price they would fetch or the goods are so deteriorated fit for destruction or become so old or outdated or outmoded may not find any market at all. 23. In the present case the department on whom the burden lies had not brought on record any evidence to establish that the Singapore Exporter was anxious to get rid of the goods in question. There was no evidence that the goods were sold at throw away price or even for reduced price. The statement of the importer that the goods were of first quality, they came in original packing and purchased for a reasonable price remains uncontraverted." 11. Relying on the above observations it is seen that the department has not brought on record any evidence to establish that the exporter in this case was anxious to get rid of the goods in question and there was also no evidence to show that the goods were sold at a throw away prices. Having regard to the dictionary meaning of the word `disposal goods' it is reasonable to hold that the disposal goods are those goods which the owner is anxious to get rid of either because the cost of storage would be more than the price they would fetch or the goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e all packed very neatly and separately and an examination should be made in this regard. But no such examination was made. But at the time of hearing the appeal a sample of the goods in question was produced before the learned Collector (Appeals). On his visual examination, he held that they look as old goods. This, in my opinion, is not sufficient to come to the conclusion that the goods are old goods. A mere visual examination by the learned Collector (Appeals) is not sufficient to come to that conclusion. 14. With respect to the decision in the case of Zenith Optical Lens Manufacturing Co. reported in 1986 (25) E.L.T. 535 (Tribunal), Shri Biswas contended that in that case the department has not disputed with respect to the fact that the goods were in original packing, but in this case the department has disputed the same. In the present case, even though the department stated that they were not in original packing, as mentioned in one of the show cause notices, the appellant had denied this fact in its reply and wanted the department to re-examine the goods, but no such re-examination was done and in the absence of such re-examination, inspite of the appellant demanding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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