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Malhotra Rubbers Ltd. Versus CE & S T-Noida II

2016 (10) TMI 331 - CESTAT ALLAHABAD

Confiscation of consignment under section 111(d) and (m) of the Customs Act, 1962 - option to pay redemption fine under section 125 of the Customs Act, 1962 - imposition of penalty under section 112(a) of the Customs Act, 1962 - star export house - export of manufactured tyres - license under Advance Authorization Scheme - import of natural rubber etc - mis-declaration of goods imported - testing of consignments - whether here is a case of mis-declaration of goods and malafide intention of impor .....

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r. - The consignment was also accompanied by test report from a duly authorized laboratory in the country of exporter. - No case of mis-declaration - appellant allowed to re-export the goods under dispute - confiscation, redemption fine and penalty set aside - appeal allowed - decided in favor of appellant. - C/70555/2016-CU(SM) - Final Order No. 70660/2016 - Dated:- 9-8-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Priyadarshi Manish & Rahul Ranjan Advocates for the Appellant Sh .....

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s the abovementioned inputs for the manufacture of rubber tyres. In normal course of business in pursuance of purchase order dated 7/5/2015, the appellant placed order for natural rubber (SVR-10) on 'Vietnam Rubber Investment Corporation, Vietnam'. The goods were dispatched against the purchase order and the appellant, filed bill of entry No. 9843394 dated 9/7/2015 wherein the goods natural rubber had arrived from the said supplier namely Vietnam Rubber Investment Corporation, Vietnam, c .....

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rubber of SVR-10. Further certifying that the goods are as per sales contract dated 7/5/2015 of Vietnam Rubber Investment Corporation, wherein the parameters namely- i) Dirt Content, ii) Ash and iii) Plasticity Retention Index (PRI) are within the prescribed limits. The test report further states that all tests on the samples submitted are carried out according to Vietnamese standard TCVN 3769-2004, which test method is equivalent to ISO-2000. 2. The bill of entry No. 9843394 dated 9/7/2015 was .....

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agreed for taking back the goods and accordingly in December, 2015 the parties entered into an agreement wherein the said exporter undertook to replace the goods and also to bear the detention and other charges incurred by the appellant. It is further evident from the impugned order, in the findings recorded by the learned Commissioner, that the exporter namely Vietnam Rubber Investment Corporation replaced all the 3 containers with matching quantity and on such replacement there was no dispute .....

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. Further the appellant appeared liable for penalty under Section 112(a) of the Act. The appellant vide letter dated 14//3/2016, waived the condition of show cause and requested for personal hearing, to expedite the matters, so as to minimize the detention charges of the containers in Port. The appellant was heard on 4/4/2016 and their contentions were considered. The learned Commissioner vide the impugned order has been pleased to ordered confiscation of the consignment of natural rubber under .....

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he standards fixed. Further observed that the rubber is not found of requisite quality by the Rubber Board. The case of mis-declaration on the part of the appellant is established and accordingly ordered confiscation and also imposed penalty, 3. Being aggrieved, the appellant is before this Tribunal. The learned counsel urges that they are regular importers, importing several containers each year of natural rubber. It is nowhere found that the appellant have deliberately imported or placed order .....

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the appellant. Further, the concerned exporter from Vietnam had accepted the error and have replaced the containers, which is an admitted fact. Under such circumstances, the confiscation of the goods and imposition of redemption fine and penalty are bad and fit to be set aside. The counsel for the appellant relies on the ruling of co-ordinate Bench of this Tribunal in the case of Zenith Rubber & Plastic Works Vs. Commissioner of Customs reported in 2010 (262) E.L.T. 272, wherein under simila .....

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imposed. 4. The learned D.R. for revenue relies on the impugned order. He further relies on the ruling of Hon'ble Supreme Court in the case of Pine Chemical Suppliers Vs. Collector of Customs wherein it has been held that question of mens rea is not relevant for the liability to confiscation and penalty, but only for quantum of fine and penalty imposable. The learned A.R. also relies on the ruling in the case of Union of India vs. Sankar Pandi 2003 (157) E.L.T. A87 (S.C.), wherein the Apex .....

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