TMI Blog2020 (2) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... any way involved in the manipulation of changing the country of origin documents. The appellant has filed the bill of entry and showed the country of origin as UAE on the basis of documents supplied to him by the supplier based at UAE. Further no document has been produced by Revenue on record to show the involvement of appellant in any way in the said mis-declaration. Further, in the present case the appellant has not claimed any preferential rate of duty. After examining the provisions of Section 111(d) and 111(m), it is found that both the provisions are not applicable in the fact and circumstances of this case. Further, no mala fides has been brought on record on the part of appellant so as to impose penalties on the appellant under Section 112(a) and Section 114AA of the Customs Act, 1962. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 20172 of 2015-SM - Final Order No. 20062/2020 - Dated:- 27-1-2020 - HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Mr. Venugopal, Advocate And Venu Associates For the Appellant Mr. P. Gopakumar, Jt. Commr. (AR) For the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 13/25.02.2014 2788.645 Agarwal Industrial Corporation Ltd. iii. It was alleged that the assessment of goods covered under these three into-bond Bills of Entry were made provisional for subjecting the goods to chemical test as well as for want of original documents. It is apparently noticed that in respect of all these three bitumen shipments, the load port was declared to be Sharjah and the Country of Origin was declared to be UAE in the relevant import/shipping documents. It was apparently noticed that for all these three voyages, the Master of the vessel MT CLAYTON II has appointed M/s. Marinelinks Shipping Agencies, Opposite Karwar Port Office, Baithkol, Karwar-581302, as the steamer agents of the vessel, as envisaged under Section 148 of the Customs Act, 1962. iv. Verification of the records further indicated that the said vessel MT CLAYTON II had already performed two voyages to the Karwar Port during January 2014 and early part of February 2014 and had separately delivered two parcels of bitumen under IGM No. 03/16.01.2014 filed in respect of Voyage No. 1 and IGM No. 07/03.02.2014 filed in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations, the show-cause notice dated 26/03/2014 proposed to confiscate the impugned consignment imported by the appellant under Section 111(m) of the Customs Act, 1962 as the imported goods did not correspond in respect of material particulars i.e., country of origin and port of loading with the entry made in the impugned Bills of Entry and also under Section 111(d), as the said goods were imported in violation of provisions of FEMA read with RBI Circular No.31 dated 27/12/2010 read with Foreign Exchange Management (Manner of Receipt and Payment) Regulations, 2000. The appellant filed a detailed reply dated 22/04/2014 to the said show cause notice and contested the allegation made in the show cause notice. The Commissioner of Customs, after following the due process vide the impugned order rejected the submission of the appellant and ordered confiscation of the imported goods under Section 111(m) and 111(d) of the Customs Act, 1962 and imposed redemption fine of ₹ 25,00,000/- (Rupees Twenty Five Lakh Only)in lieu of the confiscation; imposed penalty of ₹ 5,00,000/- (Rupees Five Lakh Only) under Section 112(a) of the Customs Act, 1962 and also imposed a penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act or the Foreign Trade Policy or any other law in force at the time of importation of said goods. He further submitted that there was no prohibition for import of goods from Iran either under the Customs ACT or the Foreign Trade Policy or any other law in force. He further submitted that once the goods imported is not prohibited and therefore the importation made by the appellant is legal and cannot be said to be imported against any prohibition. Further, the appellant had made payment to the overseas supplier located in Dubai through proper banking channels on a bona fide belief that the country of origin of the impugned import consignments are of UAE . He further submitted that even after the settlement of payment for trade transaction with Iran is not in accordance with the prescribed procedure by the RBI read with Regulations under FEMA, the same would not in any way make the import transaction prohibited to bring the transaction under the provisions of Section 111(d) of the Act. He then referred to Section 111(m) of the Customs Act which reads as follows. any goods which do not correspond in respect of value or in any other particular with the entry made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), Nhava Sheva, 2014 (313) E.L.T. 443 (Tri. Mumbai) (e) RBI Circular No.31 (RBI/2010-11/335) dated 27/12/2010 5. On the other hand, the learned AR defended the impugned order and submitted that there was a mis-declaration in the bill of entry regarding the country of origin of the imported goods. He further submitted that goods started from Iran and at Sharjah Master of the vessel along with the steamer agent and other persons manipulated the documents and changed the country of origin from Iran to UAE in various documents given to the appellant. He further submitted that the prohibition imposed under Section 111(d) includes any restriction, and in the present case there was a restriction regarding the payments to Iran imposed by Reserve Bank of India. 6. After considering the submissions of the both the parties and perusal of the material on record, I find that in the present case there is no dispute that the impugned goods i.e., bitumen is not prohibited goods either under the Customs Act or Foreign Trade Policy or any other law in force at the time of importation of goods and the Customs in the show cause notice has admitted this fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be held to be guilty of violating any of the provisions of the Act and hence confiscation of the goods is not justified. It is pertinent to note that the rate of customs duty on Tin Plate Prime is higher than the rate of customs duty payable on Tin Plate /Waste. As soon as the petitioners came to know about the fraud played by the foreign supplier, they have taken effective steps and have cleared the goods on furnishing licenses which permit clearance of Tin Plate waste. When the petitioners had placed an order for import of tin plate prime and have paid the price for Tin Plate Prime, no fault could be found with the petitioners in furnishing Bill of Entry and licences for clearance of tin plate prime. In the present case, when the petitioner has been given a clean chit and there is no violation of the provisions of the Customs Act committed by the petitioners and no revenue loss is caused by wrong supply of goods by the foreign supplier, the Collector of Customs was not justified in confiscating the goods. 6.1 Further in the case of Shree Ganesh International (cited supra), the Tribunal in para-8 has held as under: 8. We, however, agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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