TMI Blog2006 (3) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act with an option to redeem the same on payment of fine and also imposed penalty on the appellants under Section 112(a) of the Customs Act. The issue involved in this case is that the appellants purchased on high sea sales basis HMS scrap from M/s. Excellent Enterprises Pvt. Ltd. The total HMS scrap weighing 189.62 M.T. was contained in 10 containers. The sale of this consignment was done under invoice, dated 21-12-2004 wherein packing list was shown to contain 10 containers. There is also a no war material certificate issued by the seller in respect of 10 containers. When the goods landed in India, they were opened and examined by the Customs Officers and they found that out of 10 containers, in 2 containers there were empty use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material in the said consignment. Relying on these documents, he had applied for clearance of these goods hence he cannot be found responsible importing these goods. He also submits this contention that this has been admitted by the authorities as Commissioner has confiscated HM scrap under Section 119 of the Customs Act for concealing and not under any other section. It is his submission that Section 119 of the Customs Act is not applicable in the case, hence confiscation is liable to be set aside. Consequently, the penalty is imposed under Section 112 is also liable to be set aside. He submits that in respect of 0.620 M.T. of the used war materials which were found, it is an error or mistake on the part of the supplier but he is admittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no reason to take a lenient view in this case. 4. Considered the submissions made both the sides and perused the records I find from the order-in-original that empty used rusted, broken shells and cartridges were recovered from 3 containers and as per order-in-original, they were found mixed with heavy melting scrap. The question of concealing of these goods could arise if there was intention to conceal, in this case, the appellants purchased the HMS on high sea sales basis from M/s. Excellent Enterprises Pvt. Ltd. while purchasing these goods, the appellants have taken care at least to ask for documents which were consigned with the consignment and after satisfying that these were certificates stating there is no war materials they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 72.04 claimed by the importer, has not been disputed in the impugned order. Thus the department s charge of misdeclaration stands rejected in respect of this part of the consignment. Yet this quantity of scrap has also been confiscated by the Commissioner under Section 119 of the Customs Act. This confiscation is based on the finding of the scrap having been used for concealing the other materials in the consignment. On a close perusal of the impugned order, we find that ld. Commissioner has not categorically found that the 49.201 M.Ts. of scrap were used for physically concealing the remaining goods. The concealment found by the Commissioner appears to be in a sense other than physical. But Section 119 of the Customs Act requires physica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made Section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding five times the value ..... X X X X Extracts X X X X X X X X Extracts X X X X
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