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TMI Blog2012 (3) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ifunction printing and copying machines as also the secondhand photocopier machines and its accessories, parts and consumables. For carrying out the said business, the petitioner has been provided with Import and Export Code No.410042277 (for short 'IEC') issued by the office of the Zonal JDGFT, Chennai. During the course of its business, it has imported a consignment comprising of 104 units of old & used Digital Multifunction Printing and Copying Machines of various models and 10 units of old and used second hand photocopying machines from the overseas supplier viz. M/s. Jade Group Ltd. (Br) Sharjah, UAE, covered by Invoice No.5113 dated 07.04.2011 for a total CIF value of USD 24750 and filed the above stated Bill of Entry bearing No.3394138 as early as on 03.05.2011 with the assessment group concerned at the Tuticorin Custom House and sought the clearance of the same. b) Even though a Bill of entry was filed by the petitioner herein for the clearance of the impugned goods as early as on 03.05.2011, the respondents have not assessed the subject bills of entry. Added further, a Chartered Engineer, by name Er. P.Senthoor Pandian, Tuticorin, having examined the goods and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng bearing no. No.8441 3100 was inserted / introduced for the digital multifunction print and copying machines, while the photocopier machines were shifted and introduced under CTH No.8443 3930 of the said Tariff Act from erstwhile Tariff heading of 90091200. Thus, the classification of the two goods in question in terms of the Customs Tariff Act itself recognized them to be quite distinct and different. He further submits that the Foreign Trade policy also recognized the position by adopting the different classifications for the above two machines in question in the ITC classifications of Export and Import Items by the DGFT, Ministry of Commerce and Industry, Department of Commerce. e) Prior to the separate classification of the digital multifunction printing and copying machines, dispute was raised with regard to the free importability of the old and used second hand Dig photo-copier being imported through all the ports in India including the port at Chennai on the ground that these goods cannot be treated to be capital goods within the meaning of the import Export policy. The issued in question was taken before the Hon'ble Apex Court by the Customs Department was decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id respondent had accordingly released the goods with a detention certificate as agreed to by him in the contempt proceedings. The Division Bench of Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench at Bangalore, had recently passed final order Nos.405 to 416 of 2011 dated 29.06.11, holding that the action of the Customs authorities in confiscating the goods viz. old and used digital multifunction print and copying machines under Sec.111(d) of the Customs Act for non-production of a licence under para 2.17 of the policy is contrary to law and accordingly set aside such confiscation while holding that the "digital multifunction print and copier machines" cannot be termed as photocopiers to attract the bar of para 2.17 of the FTP. The petitioner accordingly submits that the disputed controversy has now been put to an end by the Apex body under the Customs Act, and it is reliably learnt that the operation of the said order has not so far been stayed or annulled by any higher appellate court. g). The action of the respondents in not assessing and permitting the clearance of the subject goods of the petitioner for over seven months is highly arbitrary and beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the chartered engineer has inspected and given his report nothing objectionable, except for a marginal increase in the declared value, which was also accepted by the petitioner herein without prejudice to his rights to proceed in a manner known to law. i). The apprehension of the petitioner is not unfounded for the reasons that even provisional assessment and release of goods sought was not considered inspite of the existence of the instructions of the Central Board of Excise & Customs, New Delhi which are squarely binding on the respondents herein, and the goods are simply lying at the container freight station, with mounting demurrage and container detention and storage charges, besides other incidental charges, detrimental to the interest of the importers like the petitioner. The petitioner further submits that even though the discretion to resort to provisional assessment rests with the proper officers of the Customs, such discretion has to be exercised in a bona fide manner and not for collateral purposes or in colourable exercise of such powers. The petitioner is advised to submit that provisional assessment has to be made on the basis of Sec.18 of the Customs Act rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying) machines and 10 numbers of photocopier machines. There are two types of classifications involved. The Multifunctional (print and copying) Machines are classifiable under Chapter Heading No.84433100 and the Photocopier Machines are classifiable under Chapter Heading No.8443 3920 or 84433930. The importer through the CHA classified all the machines under 8443920 which related to Photocopier Machines which requires import license. 3.2. In order to ascertain the facts from the Importer, Sri.S.Rajapathi, the Importer Exporter Code (IEC) holder on whose behalf the said bill of entry was filed by the CHA, was summoned under Section 108 of the Customs Act, 1962. The said Sri. S.Rajapathi, Proprietor of M/s First Tract Traders was summoned to give evidence and produce documents such as Purchase Order, Payment details and other correspondences with the supplier abroad. In response to the summons, Sri.S.Rajapathi appeared on 20.05.2011 as scheduled and gave a voluntary statement under Section 108 of the Customs Act. It is further stated in the counter affidavit that a month back, one Mohamad Hasan, who in Dubai, informed the petitioner that xerox machines were sent in Sri.S.Raja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t through other more qualified technical persons. 3.5. It is submitted that the petitioner has not retracted the statement given before the Investigating Officer under Section 108 of the Customs Act, 1962 on 20.05.2011 wherein, he denied the ownership of the import goods. Hence, the facts remain the same. Since the original importer has not turned up to claim the ownership, the goods are to be treated as abandoned and to be dealt with accordingly. The claimant has to prove his financial capacity to receive the goods. The goods are not to be assessed in the name of a person who totally denied the ownership of the goods. The real importer has to prove the ownership and then, he has to account for the value and also the legal aspect of production of import license. 3.6. Further, in the counter affidavit it is stated that the importer is one as per Section 2 (26) of the Customs Act, 1962 that the "importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. In this case, the petitioner denied his ownership of the goods before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are importable without a licence, as per the decision of the Bangalore Tribunal in the case of M/s.Shivam International and another Vs. CC,Cochin, in A.No.2477 to 2488 of 2010, dated 26.05.2011 and in view of the Minutes of the high level meeting held by the Ministry of Environment & Forest (copy furnished during hearing), the whole action said to have been taken by them causing the long delay is totally unsupported and vitiated. The respondents have not denied the contents of the retraction letter dated 21.6.2011 except for claiming that the petitioner's counsel neither personally appeared before them on behalf of the original importer nor produced the documents called for. 4.3. The only basic contention raised in the counter that the petitioner had informed his intention to disown the goods and therefore, he has no locus standi to import the goods is also not proper or legal and cannot be sustained on merits. The statement made by the petitioner that he would disown the goods was due to the fact that the authorities are proposing to increase the value of the goods to Rupees one crore which would ultimately result in the petitioner being made liable for a very huge duty lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 163 (S.C.), in para 19, it is held as follows:- "19. We may first consider the question of title to the said goods. If we keep aside the provisions of law relied upon by the appellants viz., definition of 'importer' in Section 2(26) of the Customs Act, Clause 5(3)(ii| of the Imports (Control) Order as well as para 26(iv) of the Import-Export Policy, the position is quite simple. Since the second respondent did not pay for and receive the documents of the title she did not become the owner of the said goods, which means that the first respondent continued to be the owner. How do the aforesaid provisions make any difference to this position? The definition of'importer1 in Section 2(26) of the Customs Act is not really relevant to the question of title. It only defines the expression 'importer'. The first respondent, does not claim to be the importer. The provision upon which strong reliance is placed by the appellants in this behalf is the one contained in Clause 5(3) (ii) of the imports (Control) Order. Sub-clause (1) of Clause 5 specifies conditions which can be attached to an import licence at the time of its grant. Sub-clause (2) says that a licence granted under the Order shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the context. The aphorism that a word is not a crystal and that it takes its colour from the context is no less true in the case of these words. In our opinion the object underlying Condition (ii) in Clause 5 (3) is to ensure a proper implementation of the Imports (Control) Order and the Imports and Exports (Control) Act,1947. The idea is to hold the licensee responsible for anything and everything that happens from the time of import till they are cleared through Customs. The exporter is outside the country, while the importer, i.e., the licensee is in India. It is at the instance of the licensee that the goods are imported into this country. Whether or not he is the owner of such goods in law, the Imports (Control) Order creates a fiction that he shall be deemed to be the owner of the such goods from the time of their import till they are cleared through Customs. This fiction is created for the proper and effective implementation of the said order and the Imports and Exports (Control) Act. The fiction however cannot be carried beyond that. It cannot be employed to attribute ownership of the imported goods to the importer even in a ease where he abandons them, that is, in a si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of entry was filed by the appellant herein. Under section 46 of the Act the importer apart from other things in terms of sub-section (4) has to subscribe a declaration as to the truth of the contents of such a bill of entry. In the bill of entry admittedly, the appellant herein had not disclosed that there were not the owners of the goods. Mere fact that on subsequent investigation the revenue came across material showing violation of the provisions of Customs Act and Rules would not result in holding that the person who had paid the duty and filed bill of entry cannot be held to be the owner. In the case of Sampat Raj Dugar, this Court was considered the issue Section 2(26) in the context of confiscation. That judgment really would not apply to the issue which is before us for our consideration." 5.3. In Brij Mohan Sood Vs. CC.Kandla, reported in 2007-(217) ELT 570 (Tri-Ahmd), in parA 5, it is held as follows:- "5. We agree with the above contention of the ld.DR. The financier of the goods or the owners of the same do not become importers and any liability which may arise would fall upon the person who has filed the bill of entry for clearance of goods and in whose name the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict and Sessions Judges, Thiruvanathapuram, Kerala, in para 15, it is held as follows:- "15. Section 2 of the Power of Attorney Act cannot override the specific provision of a statue which requires that a particular act should be done by a party-in-person. When the code requires the appearance of an accused in a court is is no compliance with it if a power-of-attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with "the personal attendance of the accused, and permit him to appear by his pleader" if he he sees reasons to do so. Section 273 of the Code speaks of the powers of the Court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power of attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case. b) In CDJ 2011 Ker HC 486, Abdul Raz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with" After hearing both sides and after considering the statutory provisions, we do not think that appellant, as a matter of right, can claim release of the goods on payment of redemption fine and duty. Even though gold as such is not a prohibited item and can be imported, such import is subject to lot of restrictions including the necessity to declare the goods on arrival at the Customs Station and make payment of duty at the rate prescribed. There is no needs for us in this case to consider the conditions on which import is permissible and whether the conditions are satisfied because the appellant attempted to smuggle out the goods by concealing the same in emergency light, mixie, grinder and care horns etc., and hence the goods so brought is prohibitory goods as there is clear violation of the statutory provisions for the normal import of gold. Further, as per the statement given by the appellant under Section 108 of the Act, he is only a carrier, i.e. professional smuggler smuglling g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature. While so, the third respondent arranged for a invoice of higher value, for which, the petitioner sent a notice through his advocate. The petitioner contends that once the chartered engineer report has been obtained, there cannot be any impediment for the respondent department to get the goods assessed and cleared on payment of appropriate duty. But, the same has not been done by the respondent department for certain extraneous and irrelevant considerations. Hence, the petitioner is before this Court. Whereas, the Revenue Department's contention is that as per Section 2(26) of the Customs Act,1962, "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. In the present case, he himself denied his ownership of the goods before the statutory authority by making a statement and he has not retracted the statement given before the Investigating Officer under Section 108 of the Customs Act,1962. Therefore, he is not entitled to get the goods in question. Further, in as much as the imported goods are attempted to be cleared by undervalu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the petitioner is negatived. When a person is unable to establish the ownership of the goods, needless to say, the respondents vest with the power to reject the claim of the petitioner. 13. For the foregoing reasons and discussions, I am of the considered view that mere production of Bill of Entry, Invoice of the goods, packing list and Bill of Lading, by the petitioner, that itself, will not give any right over the property, unless the petitioner establishes his ownership in a manner known to law. Thus, it is for the petitioner to go before the authorities concerned and take all necessary steps to retract the statement made by him on 20.05.2011 and prove that he is the person holding out to be an importer. In these circumstances, the claim of the petitioner has no merit consideration. However, if the petitioner proves his ownership by retracting the statement before the authorities concerned, if he is able to establish his right as a person holding out to be an importer, he can go before the authorities concerned for assessing the consignment and release of his goods. Needless to say, the burden is on the petitioner to prove his ownership and release the goods as required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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