TMI Blog2011 (4) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... , J. REPRESENTED BY :S/Shri G.K Sarkar Advocate, Tushar Verma and Saurabh Yadav, Counsels, for the Petitioner. Shri Dipak Seth, Counsel, for the Respondent. [Order]. - Heard Sri G.K. Sarkar, Advocate assisted by Sri Saurabh Yadava, learned counsel for the accused-applicant and Sri Dipak Seth, learned counsel for the Union of India and perused the relevant documents on record. 2. The accused-applicant is involved in Case Crime No. 29 of 2010, Under Sections 132 and 135(1)(A) (C)/and 104 of the Customs Act, 1962, DRl, Gomti Nagar, Lucknow. 3. According to the prosecution story, in brief, that the firm of the accused-applicant M/s. Ruby Impex, Jalandhar had imported 8 containers of Scrap from M/s. Durgesh International, USA, owned by Vicky Chawala, the son of the accused-applicant containing Lead Scrap a restricted item by misdeclaring the same as Zinc Scrap Saves and also huge quantities of used/empty cartridges casings and 3001 live cartridges for which there is absolute prohibition vide Notification No. 40 CUS dated 6-6-1970 issued under Section 11 of the Customs Act, 1962, as well as vide paragraph 2.32 of the Foreign Trade Policy 2009-2014. 4. Submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular case for the best reasons known to them, the Department has also not taken any action against the accused-applicant under the Arms Act. It is also submitted that to attract the provisions for the punishment under Section 135(1)(i)(A) of the Act, the goods should have market value exceeding rupees one crore. But the accused-applicant at best can be implicated for one container which is not valued for more than 20 lacs. It is also submitted that it is a well settled law that there cannot be a seizure or confiscation of goods for which reasons for amendment of IGM has already been made and pending. The provisions of Section 46 of the Customs Act requires Bill of Entry to be filed by the importer and if he does not file any Bill of Entry, the Department is at liberty to take action under Section 48 of the Customs Act. But there is no power with the Customs Officers to force anybody to file Bill of Entry. If the Officers are of the bona fide plea that there has been a violation of the Arms Act, the matter should have been forwarded to the concerned police authorities to take appropriate action under the Arms Act. But the so-called live cartridges were never forwarded to the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It is further submitted that the Panchnama dated 16-3-2010 when the Container No. HLXU 2208470 was first examined on 12-3-2010, revealed only one live cartridge. The said container was re-examined by the department on 12-7-2010 and carried on 13th, 14th, 15th, 16th, and 17th, July, 2010 in this regard, it is to be noted that only one Panchnama has been drawn on 17-7-2010 for which the proceedings took place on six consecutive days and in the said proceedings neither the applicant nor any of his representative was present. It is further submitted that the Panchnama does not mention the presence of any expert authority like Forensic Expert or officers of CRCL, then who has certified the goods to be live cartridges it is abundantly clear that in any way DRI officers cannot said to be expert to identify the same as live cartridges . 5. It is further submitted that the accused-applicant cannot be held liable for the various reasons. Firstly, no Bill of Entry of 7 containers has been filed, so there is no mis-declaration. Secondly, the IGM and Bill of Ladings are the documents generated by the shipping line. Thirdly, the applicant vide his letter dated 9-3-2009 clarified to the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Union of India v. Sampat Raj Dugar reported in 1992 (58) E.L.T. 163 (S.C.). (2) Joginder Kumar v. State of U.P. reported in (1994) 4 SCC 260. (3) Mirah Exports Pvt. Ltd. v. Collector of Customs reported in 1998 (98) E.L.T. 3 (S.C.). (4) Union of India v. Pacific International Traders reported in 2002 (143) E.L.T. A187 (S.C). (5) Pacific International Traders v. Union of India reported in 2002 (142) E.L.T. 544 (Bom.). (6) Chandra I. Kriplani v. Commissioner of Customs ACC, Mumbai reported in 2002 (149) E.L.T. 537 (Tri. - Mumbai). (7) Court on its Own Motion v. C.B.I reported in [ILR (2004) 1 Delhi 47]. (8) Subhash Choudhary v. Deepak Jyala reported in 2005 (179) E.L.T. 532 (Bom.). (9) Sita Ram Aggarwal v. Customs reported in 2005 (188) E.L.T. 478 (Del.). (10) Commissioner of Customs Excise, Goa v. Kabul Textiles (LLC) reported in 2006 (206) E.L.T. 1173 (Bom). (11) Alpesh Arvind Lal Gandhi Ors.v. Union of India Ors. reported in 2006 (75) RLT 5 (S.C.). (12) Commissioner v. Kabul Textiles reported in (LLC) - 2007 (218) E.L.T. A122 (S.C). (13) Sangit Krishna Kumar Agrawal v. Union of India reported in 2007 (219) E.L.T. 143 (Bom.). (14) Commissioner of Customs, Calcutta v. Sout ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 (257) E.L.T. A35 (All.). (38) Uttam Chand and Others v. Income Tax Officer, Central Circle, Amritsar reported in 1982 (2) SCC 543. (39) Anil Mahajan v. Union of India reported in 2009 (235) E.L.T. 430 (Del.). (40) G.L. Didwania v. Income Tax Officer reported 1999 (108) E.L.T. 16 (S.C.). (41) Seiko Brushware (India) v. Directorate of Revenue Intelligence reported in 2009 (248) E.L.T. 156 (Del.). (42) Medisphere Marketing Ltd. v. Inspector Customs Preventive reported in 2010 (256) E.L.T. 27 (Del). (43) Ashok Manufacturing Co. Pvt. Ltd. v. C.K. Moorjani reported in 2003 (156) E.L.T. 184 (Del.). (44) Apex Recycling Pvt. Ltd v. Commissioner of Central Excise, Delhi-I, reported in 2008 (230) E.L.T. 599 (Tri-Del.). (45) Kabul Textiles v. Commissioner of Central Excise, Goa reported in 2004 (174) E.L.T. 470 (Tri.-Mumbai). (46) Commissioner v. Subhash Chandra Rastogi reported in 2010 (257) E.L.T. A135 (All.). (47) Assistant Collr. of C. Ex. Rajamundry v. Duncan Agro Industries Ltd. reported in 2000 (120) E.L.T. 280 (S.C.). (48) Mohtesham Mohd. Ismail v. SPL. Director, Enforcement Directorate reported in 2007 (220) E.L.T. 3 (S.C.) = 2009 (13) S.T.R. 433 (S.C.). (49) Asst. Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led any Bill of Entry in respect of the aforesaid containers. That on examination of remaining containers the Lead Scrap was found in the form of lead cables, sheets, weights etc. and the Zinc Scrap was present in a very small quantity meant only to conceal the Lead Scrap during first hand examination of the container. It is further submitted that on examination of one of the said Containers bearing No. HLXU 2208470 declared to contain Brass Scrap, huge quantities of used casings of cartridges and live cartridges of different bore and make were found kept concealed beneath the Brass Scrap layer. It is also submitted that the accused-applicant is fully aware of the fact that the contents of the containers imported by him were not Zinc Scrap but Lead Scrap which is restricted item and live cartridges/empty cartridges casings which are prohibited items for import and this fact has been admitted by the accused-applicant in his statement recorded under Section 108 of the Customs Act, 1962. 8. It is further submitted that in as much as in all the documents whether the Bill of Entry submitted by him or Bill of lading and the goods declared in IGM (Import General Manifest) by the exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C.) and (3) Naresh J. Sukhawani v. Union of India reported in (1995) Suppl. (4) SCC page 663 = 1996 (83) E.L.T. 258 (S.C.). 11. The points pertaining to nature of accusation, danger of accused absconding or fleeing if released on bail, character, behaviour and position of the accused, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered. 12. The allegations against the accused-applicant are that he had illegally imported the Lead Scrap a restricted item by mis-declaring the same as Zinc Scrap Saves in the documents and also the live cartridges as well as huge quantities of used empty cartridges casings. The Lead Scrap is liable to confiscation under Section 111(d) and 111(m) of the Customs Act, 1962, read with Section 119 of the Customs Act, 1962, and also read with the provisions of Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, as listed in Schedule-III (Part A) A 1010 read with Para 2.32 of Handbook of Procedures Vol. I of Foreign Trade Policy 2009-2014. 13. The Live cartridges, blank cartridges and bras ..... X X X X Extracts X X X X X X X X Extracts X X X X
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