TMI Blog2007 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... aysia disclosing that the importer M/s. Vaibhav Laxmi Impex Pvt. Ltd., Delhi have asked them to ship valuable Tin Bearing Sand with the top covering of tin plated brass, while declaring the same to be as "Brass Scrap as per ISRI Label", investigations were initiated by the Customs Authorities, in respect of 7 containers which arrived at Khandla Port vide bill of lading dated. 11-4-2003. On examination and as per import general manifest, filed by the Shipping Line Agent, the 7 containers, imported in the name of M/s. Vaibhav Laxmi Impex Pvt. Ltd., were shown as containing brass scrap as per ISRI label. It also transpired that out of the 7 containers, the said importer had sold 2 containers to M/s. Vishal Impex, Jamnagar, on High Sea sale bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alani acted as middle man in the said dealing; that the entire payment was to be made after 15 days of the receipt of the exported brass scrap in the factory premises. They also produced the bill of lading, bill of entry, certificate of region, packing list and insurance certificate etc. Shri Kataria further deposed that bill of entry was filed by them on 12-6-2003, but as the seller insisted on immediate payment and they were not having enough finance, they decided to cancel the bill of entry and accordingly vide their letter dated 18-6-2003, made a request to the Commissioner for cancellation of the said bill of entry. It was further disclosed that they are not in correspondence with the foreign supplier and they never dealt with him at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation of the goods contained in the 7 containers for alleged mis- declaration of the goods as well as for under valuation of the same, for recovering the Customs duty involved in the goods and for Imposition of personal penalty on various persons. 4. On adjudication, Commissioner of Customs observed that since the importer has not filed bill of entry and has intimated that they are not interested in clearing the same, tile of the goods in dispute is not with the importer and the High Sea purchaser, the goods are required to be confiscated and the duty liability is required to be discharged from the sale process of the said goods. Accordingly he confiscated the goods and held that mere neither Noticee No. 1 nor Noticee No. 2 i.e. im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The appellant's plea that they have not filed the bill of entry and hence cannot be held liable for penalty under Section 112 stands discussed by the Commissioner in detail. It has been observed by him that the Department started its investigations on 11-8-03 whereas the appellant's request for relinquishing the title of the goods was made on 13-9-2003 and 20-10-2003 and has to be held as of after thought. We fully agree with the above finding of the Commissioner. The complaint, the investigations, the Chemical Examiner's report and the statements recorded during investigations clearly point out to one fact that that costly "Ferro Titanium" product was stocked in the containers with the top layer as brass scrap with a design to defraud t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is seen that they were the High Sea sale purchaser of the goods. The said deal was finalized by them through Shri Chetan Malani and there is nothing on record to show that they were aware of the stuffing of the containers with Ferro Titanium instead of brass scrap. They have also deposed in their statements that they never got in touch with the foreign supplier and the entire deal was finalized through Shri Chetan Malani. Their involvement in the Sport of high valued good by mis-declaring the description is doubtful, in the absence of any concrete evidence to that effect. As such by extending the benefit of doubt, we set aside the penalty imposed upon M/s. Vishal Impex. 9. As regards penalty of Rs. 1 crore imposed upon Shri Chetan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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