TMI Blog2012 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... swanathan For Respondents ... Mr.R.Aravindan Standing Counsel JUDGMENT B. Rajendran, J The Writ Appeal has been filed by the writ petitioner challenging the dismissal of the writ petition by order dated 01.03.2012. 2. According to the appellant, he is an importer and he has imported used materials which does not require licence . Therefore, the insistence of the department in asking for the licence and levying penalty does not arise. The facts of the case are as follows: 2.1. The appellant Concern has been engaged in the import and trading of digital multifunction printing and copying machines as also the photocopier machines and its accessories, parts and consumables. During the course of its business, it has imported a consignment comprising of 104 units of old and used Digital Multifunction Printing and Copying Machines of various models and 10 units of old and used 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as the imported goods are attempted to be cleared by undervaluing and also without valid import licence the said goods are liable for confiscation under Section 111(d) and 111(m) of the Customs Act, 1952. 3. The appellant aggrieved by the order of the learned Single Judge mainly on the ground that an importer need not be the owner of the goods, has come forward with this writ appeal. No doubt, he has stated in the enquiry before the authorities under Section 108 of the Customs Act, 1962, that the person who financed for the purchase of the goods who is at Dubai. Whereas, as per the bill of lading everything has been purchased by him in respect of the articles which does not require licence . Therefore, the insistence of the authorities to clear the goods without document is legally not sustainable. According to him, even the alleged confession statement given by the appellant before the authorities concerned under Section 108 of the Customs Act also has been retracted though not by himself but by the legal notice of the Advocate. Under these circumstances, the reliance of the authorities that he has disowned the articles cannot be emphasised. The allegations of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o appear before the Investigating Officer either to claim ownership or to produce the necessary licence to prove the nature of imported goods. The appellant has also not retracted the statement. Therefore, according to the department, the goods are to be treated as abandoned and to be dealt with accordingly. Therefore, they would mainly contend that the goods are not to be assessed in the name of a person who totally denied the ownership of the goods. Inasmuch as the imported goods are attempted to be cleared by undervaluing and also without valid import licence , as he has classified different items of goods as one item, it is liable to be confiscated under Section 111(d) and 111(m) of the Customs Act, 1962. 5. Though the appellant has argued that Section 2 (26) of the Customs Act, 1962, not only recognizes the owner as an importer, but also any person holding himself to be such importer. Even as per the decision cited by the appellant reported in 1992 (58) E.L.T. 163 (S.C.), (UOI Vs Sampat Raj Dugar) in paragraph 19 it has been held that "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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or fails to pay for and take delivery of the imported goods. He just abandons them. (We may reiterate that we are speaking of a case where the import is not contrary to law). It is only with such a situation that we arc concerned in this case and our decision is also confined only to such a situation. Condition (ii) in sub- clause (3) of Clause 5, in our opinion, does not operate to deprive the exporter of his title to said goods in such a situation. 6. From a reading of this very judgment itself it is very clear that here is a case where the appellant who claims to be the importer abandoned the goods to suit his convenience and does not choose to identify the actual importer. The actual importer does not appear before the authorities and he also does not claim. Under those circumstances, the interpretation as claimed by the appellant as stated that he is an importer cannot be accepted especially, when the Hon'ble Supreme Court has categorically held that such a situation will arise to many when they abandon the goods. 7. Similarly, in the judgment cited by the respondent, which is also extracted in the judgment of the learned Single Judge viz., 2003 (155) E.L.T.423, Om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere they have themselves stated that it will be reassessed in the light of the finding of two different materials. Therefore, if at all he as to go only before the authorities and definitely the authorities can refix the value since they cannot assess the liability on the person who has disowned the ownership. As it is rightly stated the goods are attempted to be cleared by undervaluing and also without valid import licence the said goods are liable for confiscation under Section 111(d) and 111(m) of the Customs Act, 1952. It is rightly pointed out by the learned Single Judge that the appellant's statement is that he has only IEC and has no connection with the imported consignment as in the manner known to law and as rightly pointed out that settled legal position under Section 108 of the Act, the appellant's claim for assessment or provisional assessment cannot be considered. Therefore, the learned Single Judge has rightly held that a person is unable to establish the ownership of the goods the respondent is vest with the power to reject the claim of the appellant and ultimately, correctly held that it is for the appellant to go before the authorities concerned after retracting co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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