TMI Blog2000 (8) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... ption on payment of fine of Rs. 7,50,000 besides penalty of Rs. 5 lakhs was imposed on appellants-importers i.e. M/s. Pushpit Steels (P) Ltd. under Section 112(a) of the Customs Act and penalty of Rs. 1 lakh was imposed under Section 112 (a) of the Customs Act, 1962 on Anand Kumar Garg. 2. (a) Three BEs were filed for HMS scrap and were cleared duty free on advance licences on Bill of Lading as per chart given below : Sl. Bill of Entry No. Bill of Lading No. Adv. Licence No. Expiry dt. 1. 7724/23-11-98 APLU006405988/30-9-98 P/0483935/C/XX/33/C/94 11-9-98 2. 8029/3-12-98 KWT/XPK/207/044/29-9-98 -do- -do- 3. 8593/23-12-98 APLU006406568/29-9-98 P/W/03497924/C/XX/31/C/93 30-9-98 Total quantity of the HMS scrap covered by these three BEs was 436 MT out of which 356 MTs could not be located and was said to have been consumed and 70 MT was seized at the factory premises of the importer at Pondicherry. (b) In the following BE, 585 MT of the HMS scrap was imported by the same importer through Kochi port. Sl No. Bill of Entry Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 426 MTs have been cleared on BEs assessed by the Proper Officer, without any adverse remarks after physical verification and this cannot be the subject-matter of confiscation since the said order of assessment tantamounts to order of adjudication and the Customs authorities have no power to review their own orders. (d) Since the goods cannot be directed to be confiscated, therefore, levy of redemption fine and penalty cannot be ordered. (e) He also relied upon the decision in the case of M/s. Mahendra R. Saraf Co. v. C.C., Bombay of the North Regional Bench of the Tribunal vide Final Order No. A/567/97-NB, dated 21-4-1997 to submit that confiscation of the goods is not called for when admittedly as in this case, the goods are freely importable. He also relied upon the decision in the case of C.C. v. Pune Roller as reported in 1997 (89) E.L.T. 604 and also the decision of M/s. Bakemen s Home Products (Pvt.) Ltd. reported in 1997 (95) E.L.T. 278 (T). As regards the demand being barred by limitation he relied upon the decisions HMM - 1995 (76) E.L.T. 497; Padmini Products Chemphar. (f) Since the appellants-importer is the actual users they are entitled to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the goods or if the goods are not covered by open general licence under which the goods have been imported, clearance of the same against a valid import licence if produced by the importer may be considered, provided that the importation is otherwise bona fide . Therefore, we find it was incumbent on the proper officer of the Customs to have considered the present impugned imports on the four BEs pending assessment under OGL since they are not restricted for import otherwise. This has not been considered along with the request of the importers for eligibility of the Notification No. 23/98-Cus. for use as actual users. The Commissioner has found in para 50 as follows : The next contention raised by the importers is that, they being actual users, the applicable rate of duty is only 31.56% as against the demand of 612.46% made in the show cause notice. They have also stated that they are making the claim as per Notification 23/98-Cus. I find that there is no material evidence in file to show that the importers are actual users of imported goods, except the claim made in the written submission given at the time of the personal hearing. It is also seen in the entry made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l). The production of advance licence and acceptance would involve the benefit of clearance duty free under the relevant DEEC exemption Notification and mere claim of such exemption Notification is not rendering the goods covered by the four BEs eligible for confiscation under Section 111(m). We rely on the decision in the case of Northern Plastics reported in 1998 (101) E.L.T. 549 (S.C.). (c) We find there is substantial force in the arguments of the learned Counsel that the demands of duty under Section 28 of the Customs Act, 1962 have to be made by the proper officer and not by the DRI officers, since proper officer of Customs has been designated by the law. Interpretation as arrived at by the learned adjudicating authority in para 51 of the impugned order and issue of demand under Section 28 of the Customs Act, 1962 is therefore not upheld in view of the decision in the case of Pune Rollers as reported in 1997 (89) E.L.T. 604 and M/s. Bakeman s Home Products Pvt. Ltd. v. CC as reported in 1997 (95) E.L.T. 278 for the goods covered by the four BEs under assessment. The theory of committy of courts postulates that when there are two or more courts having parallel jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods covered by the four BEs pending assessment is required to be set aside. These BEs are required to be assessed by the proper officer of the Kochi Customs as per law and directions in the Appraising Manuals. The appellant-importers be given an opportunity to produce such other licences, including the claim under OGL, as they may be advised in the matter, to produce before the proper officer of the Kochi Customs. (c) As regards the seizure of 71 MTs of scrap we find no infirmity in the seizure of the goods in the factory premises which were assessed duty free, and cleared earlier, where the Bill of Lading (BL) date was alleged to be not correct. We uphold the show cause notice and the power of the DRI officers to issue show cause for goods which have already been assessed by the proper officer of the Kochi Customs House. Since we have to set aside part of the order and the show cause notice for the four BEs, the total demands of duty made will have to be re-determined along with redemption fines and consequently the penalty. The matter regarding part of consignment of earlier goods seized at the factory at Pondicherry has to be kept open for re-adjudication and re-determina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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