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TMI Blog2020 (2) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation initiated by the Customs Preventive Unit, Customs Division, Karwar, revealed that certain bitumen shipments loaded in Iran have been imported through the Karwar Port and that in respect of these shipments, the vessel has resorted to mis-declaration of country of origin of the goods as UAE by using doctored documents. That one such consignment of bitumen loaded per vessel MT CLAYTON II has been scheduled for arrival at the Karwar Port during last week of February 2014. ii. Verification of relevant documents filed with Customs, Karwar pertaining to voyages made to the Karwar Port by the subject vessel MT CLAYTON II indicated that in all, three Bills of Entry for Warehousing under Section 46 of the Customs Act, 1962 have been hitherto filed in the current fiscal for import of bitumen parcels in the said vessel, as detailed below: Sl.No. Vessel BOE (Into Bond) No. & date IGM No. & date Quantity (MT) Importer 1 CLAYTON II VOYAGE NO.1 14/16.01.2014 03/16.01.2014 2776.436 Agarwal Industrial Corporation Ltd. 2 CLAYTON II VOYAGE NO.2 32/04.02.2014 07/03.02.2014 2799.719 Bitumen Corporation Ltd. 3 CLAYTON II VOYAGE NO.3 60/25.02.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant documents/records of the vessel MT CLAYTON II, it appears that in respect of its voyages No.1 and 3, the subject vessel had loaded bitumen originally at Port Bandar Abbas, Iran and then proceeded to the Port Karwar by only touching the anchorages of Port Khor Fakkan (Voy.1) and Port Khalid (Voy.3), as the case may be. vii. On comparison of these findings of investigation with the relevant import documents furnished to Customs by the importer AICL for clearance of bitumen imported per vessel, MT CLAYTON II in voyages No.1 and 3, it appears that the origin of goods indicated as 'UAE' and port of loading indicated as "Sharjah" in the import documents is false. It therefore appears that there is mis-declaration regarding origin of the subject goods. It further appears that the relevant shipping/import documents viz., stowage plan, Load port ullage survey, statement of facts, bills of lading, quantity certificate etc., have been fudged and manipulated so as to falsely indicate the port of loading/country of origin as "Sharjah/UAE", as the case may be. Based on these above allegations, the show-cause notice dated 26/03/2014 proposed to confiscate the impugned consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: "any goods which are imported or attempted to be imported or are brought within the Indian Customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force". 4.1 He further submitted that Section 111(d) can only be invoked where the goods are imported in contrary to any prohibition imposed either under the Customs Act or any other law, for the time being is in force. He further submitted that the case of the Revenue in the impugned order is that the appellant has violated the provisions of RBI Circular No. 31 dated 27/12/2010 read with Foreign Exchange Management (Manner of Receipt and Payment) Regulations 2000 in terms of which the trade transactions with Iran should be settled in any permitted currency from outside ACU mechanisam (Asian Clearing Union). He further submitted that in the present case, it is a admitted position as reflected in the show cause notice also that the impugned goods i.e., bitumen is not prohibited goods either under the Customs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly or indirectly to the manipulation of the import documents. He also submitted that as per the procedure provided by the Central Board of Excise and Customs in the Customs Manual 2015, the 'country of origin' becomes relevant to be mentioned in the bill of entry if preferential rate of duty is claimed by the importer where as in the present case the importer did not claim any preferential rate of duty and mentioned the 'country of origin' in the bills of entry as per the documents given to him by the supplier based at Dubai. In support of his submissions he relied upon the following decisions and circular: (a) Oriental Containers Ltd., Vs Union of India, 2003 (157) E.L.T. 503 (Bom.) (b) Shree Ganesh International Vs Commissioner of C.Ex., Jaipur, 2004 (174) E.L.T. 171 (Tri. Del.) (c) Kirti Sales Corporation vs Commissioner of Customs, Faridabad, 2008 (232) E.L.T. 151 (Tri. - Del.) (d) Trishla Steel Engg. Co. Vs Commissioner of Cus. (Import), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Limited vs Union of India (cited supra), the Hon'ble High Court of Bombay in para 9 has observed as under: "9. Having heard the Counsel on both the sides, we are of the opinion that in the present case, it is admitted by the Customs authorities that the petitioners are not party to the fraud and there was no mala fide intention on the part of the petitioners in importing the Tin Plate/Waste instead of Tin Plate Prime. In fact, the petitioners have paid to the foreign supplier the price of tin plate prime and in return got tin plate waste. The petitioners have paid the customs duty payable on Tin Plate Prime. Under the circumstances, when the petitioners are innocent victims of the fraud played by the foreign supplier and the petitioners have suffered double jeopardy by paying the price and the duty payable on Tin Plate Prime, on account of the fraud committed by the foreign supplier, the petitioners 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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