TMI Blog2001 (1) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act. 2. Briefly stated the facts of the case are as under :- 2.2 The appellants had ordered for a consignment of Information Technology Software of a specified kind for use in Telephone Exchanges under the Department of Telecom, Govt. of India. The appellant had been supplying Electronic Digital Switching System (EWSD) to the Ministry of Communications, Department of Telecommunications, Govt. of India, New Delhi, against orders received on acceptance of the appellants tenders since 1993. The subject Software was required for being used in the said system. 2.3 As per the appellants, the goods ordered by the appellant, i.e., APS Software (Information Technology Software) loaded in CD ROM [Computer Disc Read Only Memory) were air freighted in 18 packages from Frankfurt vide flight No. BA 143 dt. 27-2-1999 Rot No. 676/99 Line No. 25 against Airway Bill No. 125-0608/6075 dt. 24-2-1999 HAWB No. FCS 96604 259 dt 24-2-1999. The weight of 18 packages containing the ordered goods was shown as gross 90 Kgs. The goods shipped were covered by 18 invoices numbering 3406-5791 to 3406-5808, all dt. 23-2-1999. The description of the goods given in the invoices read as Information Technolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermany. 2.8 Thereafter, the appellant returned the subject invoices to Siemens AG, Germany and no payment was effected in respect of the subject consignment. The foreign supplier thereafter supplied the ordered goods, i.e. Information Technology Software (APS Software) loaded with CD ROM against the appellant s original order which were duly allowed clearance upon the appellant s filing bill of entry therefor by the customs authorities at Calcutta between 18-8-1999 and 14-9-1999. 2.9 Subsequently the appellants were issued a show cause notice dt. 25-10-1999 alleging contravention of provision of Customs Act, 1962 and proposing to confirm demand of duty of customs against the appellants as also the confiscation of the goods and imposition of penalty upon them. The said show cause notice, after due adjudication, culminated into the impugned order, passed by the Commissioner. 3. Dr. Samir Chakraborty, ld. Adv. appearing for the appellant assailed the above order of the Commissioner on the ground that though the adjudicating authority has allowed re-export of the goods, he had no jurisdiction or power to impose any redemption fine or penalty upon them. In support of his above con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation Technology Software. In fact, a specific query raised by the Group Appraiser and the Asstt. Commr. concerned, the appellant furnished all the necessary documents and technical literature regarding Software ordered for. It is also on record that a doubt is being raised by the DRI/Customs authorities that the goods in question were not as described by the said bill of entry, the appellant sought clarification from the foreign supplier who issued a certificate on 24-9-1999 that the goods under import were software related items. This certificate was submitted by the appellant to the customs authorities. The ld. adv. argues that the appellant, therefore, had no occasion to inspect the subject goods to find out whether or not the said goods were as per the claim of the foreign supplier and as contained in the document/certificate issued by them. It is also clear from the records, submits the ld. adv., that as soon as the appellant became convinced that the goods were those which were not ordered for by the appellant, upon detention order passed by the DRI authorities on 29-4-1999, the appellant informed the foreign supplier as well as customs authorities about the abandonment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported goods not conforming to that ordered by the appellant. He submits that, as explained earlier, the appellant sought and obtained clarification from the foreign supplier who still insisted that the goods were Information Technology Software related products and issued a certificate dated 24-9-1999 to that effect which certificate the appellant duly submitted to the customs authorities. However, since the DRI/customs authorities continued to insist that the said goods do not conform to the description given in the B/E and upon being satisfied that the import consignment was not the goods ordered for by the appellant, the appellant duly relinquished its title to the said goods. He, therefore, argues that the finding of the Commissioner that the appellant s decision to abandon the said goods is with the attempt to evade customs duty is also misconceived and untenable. 3.5 In view of the foregoing submissions Dr. Chakraborty prays for setting aside the impugned order and allowing the appeal with consequential relief to the appellants. 4. We have also heard Shri V.K. Chaturvedi, ld. SDR appearing for the Revenue, who adopts the reasoning contained in the impugned order and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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