TMI Blog2005 (4) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... abrics through containers at Marmagoa Port, by resorting to misdeclaration and undervaluation, the Import General Manifests of seven consignments were scrutinised. Two of such consignments had come in the name of the said M/s. Ayesha Exports, three had come in the name of M/s. R.T. Co., and two in the name of M/s. Ruchitra Impex, all having their addresses at New Delhi. M/s. Ayesha Exports filed two bills of entry but bills of entry were not filed on behalf of the said M/s. R.T. Co., or M/s. Ruchitra Impex. Upon investigations carried out by the Additional Director General, Directorate of Revenue Intelligence, the said Addl. Director General came to the conclusion that the said consignments were misdeclared with a view to evade customs duty. He also found that M/s. R T Co., as well as M/s. Ruchitra Impex were fictitious persons/companies, though he did not say this in so many words. He also found that the goods which were sought to be imported were in fact not Polyester Knit Fabric as mentioned on the Import Manifests but were classifiable as Polyester Knit Fabric (Man made Warp Knitted Fabric 2 way other than Pile Fabric), which merited classification under Customs Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were returned to them by the banks and were in their possession and that the goods exclusively belong to them and no other person had right, title or interest in the said goods. They also referred to the case of Union of India v. Sampat Raj Dugar [1992 (58) E.L.T. 163] as laying down the law as applicable to their case. 6. However, the Commissioner of Customs and Central Excise found that the General Manifest (IGM) had shown the consignee details "To Order" which was changed to M/s. Ayesha Exports, New Delhi, and, who by their letter dated 8-11-2000, wrote to the Shipping Agent that the said consignment belonged to M/s. R. T. Co., New Delhi. He held that the bill of lading indicated that at the instance of the supplier i.e. the respondent, the Shipping Company i.e. to say M/s. Maersk Sealand, had issued switched bills of lading at Dubai by altering the description of the consignment to Polyester Knit Fabrics in place of initial description of "Polyester Nicky Velour P/D (240/Gms/Yard) which attracted higher rate of duty and these commissions and omissions indicated that there was an attempt and effort to misclassify the fabrics adopting the same modus operandi similar to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation : (a)....................... (b)....................... (c)...................... (d) Any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of having imported contrary to any prohibition imposed by or under this Act or by any other law for the time being in force. (e)....................... 10. It is the contention of the Revenue that the said goods were imported contrary to Section 11 of the Foreign Trade (Development and Regulation) Act, 1992, read with Rule ….. of the Foreign Trade (Regulations) Rules, 1993. Section 7 of the said Foreign Trade (Development and Regulation) Act, 1992, provides that no person shall make any import or export except under a ImporterExporter Code Number granted by the Directorate General or the Officer authorized by the Director General in this behalf in accordance with the procedure specified in this behalf by the Director General. Sub-section (1) of Section 11 of the said Act further provides that no import shall be made by any person except in accordance with the provisions of this Act, the rules and orders made thereunder and the export and import policy for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable to the case of a foreign supplier like the Respondent. 12. The case of Om Prakash Bhatia v. Commissioner of Customs [2003 (155) E.L.T. 423], in which the Revenue places reliance, is again a case dealing the confiscation of prohibited goods and the Supreme Court referring to Section 2(3) of the Act, which defines "prohibited goods" stated that the prohibition could be complete or partial and that any restriction on import or export is to an extent a prohibition. This ratio is inapplicable to the case at hand. 13. As regards question (b), it has been submitted on behalf of the Revenue that the Supreme Court in the case of Sampat Raj Dugar (supra), had stated that a person who is a party to any conspiracy or to any fraudulent plan hatched or sought to be implemented would not be entitled to re-export the goods. It has also been submitted that the CESTAT ought to have considered the ratio in the case of Commissioner of Customs v. Grand Prime Ltd. - 2003 (155) E.L.T. 417 (S.C.). 14. Sub-section (m) of the Customs Act, 1962 reads as follows : "(m) Any goods which do not correspond in respect of value or any other particular with the entry made under this Act or in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to help the importers to evade duty. The CESTAT was also right in placing reliance on the decision of this Court in the case of Pacific International Traders (Supra), wherein on facts similar to this case, this Court permitted re-export of the imported goods. Indeed, this Court in the case of Pacific International Traders (supra), had also relied upon another case of J.P. Electronics Pvt. Ltd v. Union of India and Ors," wherein it was observed as follows :- "It is pertinent to note that in case of the first consignment which arrived on 30-6-2000, necessary steps were taken and proceedings are being held for the alleged undervaluation against M/s. Rahul Associates. However, it seems that the second consignment which was sent to M/s. Rahul Associates is detained only on the assumption that it would have been undervalued. Significantly, it cannot be overlooked that M/s. Rahul Associates had not filed any Bill of Entry or import document, and in fact they expressed their intention to abandon the goods due to their bad financial condition. Hence, the second consignment which is in dispute, cannot be linked with the first consignment which was allegedly undervalued only because it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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