TMI Blog2004 (8) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... he department's permission to re-export the said goods, since they had all titles of ownership to the said goods. They also gave further details for the consignments having been sent in India. By a show cause notice dated 4-12-2001, they were called upon to show cause why the said goods should not be confiscated under Section 111(m) of the Act and a penalty should not be imposed on them. They contested the show cause notice through their Advocate. However, vide order dated 29-4-2003, the Commissioner ordered confiscation of the goods under Sections 111(d) and (m) of the goods and gave an option to redeem the same on payment of fine of Rs. 73 lakhs and a penalty of Rs. 73 lakhs under Section 112 of the Customs Act. He has also ordered that the appellants were claiming ownership of the goods, they were free to either re-export or clear the same for home consumption on payment of appropriate duty. A penalty of Rs. 73 lakhs was also imposed on R.T. Co, New Delhi under Section 112 of the Customs Act. Hence this appeal by the supplier of the goods. 2.The matter was kept for early hearing and stay was heard on 4-9-2003. However, the orders on the stay applications could not be passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation the Commissioner found that it was not prudent act to entertain and send consignment on the word of an undependable individual in the course of international trade and therefore relying on the Supreme Court's decision in Sampat Raj Dugar, 1992 (58) E.L.T. 163 (S.C.), Grand Prime Ltd. v. UOI, 2000 (126) E.L.T. 390 (Cal.), Bharat Forge, 2000 (122) E.L.T. 169, Savitri Electronics Co., 1992 (62) E.L.T. 395 and Pacific International Writ Petition No. 2146 of 2001 [2002 (142) E.L.T. 544 (Bom.), he concludes that the thrust of the Hon'ble Supreme Court's decisions were towards only bona fide unmanipulating by senders of goods and since the present appellant had taken unusual steps of selling the goods through a broker without any sales contract/purchase order/LC and also went along with the importer/broker to the extent of changing the description of the goods which were original shipped from Shanghai to hide the "velour" characteristic of the fabrics which went to the root of the matter of the classification end rate of duty and that such an act was not to be performed by a prudent/genuine exporter who would not have waited for seven months, and would have come forwarded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court, after finding that the title of the first respondent (the supplier abroad) in that case remain free of any cloud, ordered reshipment as sought for by the exporter abroad. In that case, the second respondent (the alleged importer) had refused to pay and clear the documents and abandoned his claim having taken no steps to clear the goods by filing a Bill of Entry as are the facts in this case also. Merely because some action has been taken against certain importers of fabrics at Ludhiana as relied upon by the learned Commissioner, in the adjudication order, the present appellant who is the exporter of the goods from abroad cannot be assumed to be part of a conspiracy to import these goods at Goa. The reliance of the adjudicator on the act of the exporter abroad being imprudent inasmuch as no order for shipment was obtained in writing and/or 'Daulat' the broker was not being found are in the nature of commercial risk in business. Business Deeds do go away, a botched up deal on risk taken is not necessarily an attempt to defraud Customs, especially in the liberal import regime, when it is nobody's case that the actual goods were not freely importable. The Apex Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 (155) E.L.T. 417 (S.C.) would not be applicable to the facts therein since in that case the goods imported were banned and the import was contrary to law inasmuch as that was being made without an import licence. No such case exists in this case. The differentiation made by the learned Advocate about the applicability of the Grand Prime's case has to be upheld. The case of Om Prakash Bhatia v. CC, Delhi, 2003 (155) E.L.T. 423 (S.C) does not assist the Revenue's case since no prohibition to import the goods under consideration has been established by the adjudicator and valuation of export goods and draw back are not the issues involved in this case. The export of the imported goods is therefore allowed unhindered. 4.Consequent to the finding, the order is required to be set aside. 5.Order of confiscation set aside and export of the goods allowed to the appellant. 6.Appeal allowed in the above terms. Sd/- (S.S. Sekhon) Member (T) [Order per : Krishna Kumar, Member (J)].-7. In view of the fact that the misdeclaration subsists in bill of lading, invoice; manifest and the invoice has been prepared by the appellant and the other documents have been prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned to the original Bench for passing majority order. Sd/- (S.S. Sekhon) Member (T) Sd/- (Krishna Kumar) Member (J) [Order per : Jyoti Balasundaram, Member (J)]. -13. I have heard both sides on the difference of opinion referred to me. The facts of the case are already set out by the Referring Bench and hence are not being repeated here. 14.Learned Member (Technical) has held that the provisions of Section 111(m) invoked in the show cause notice are not attracted as no Bill of Entry has been filed and declaration made therein. He has also held that the provisions of Section 111(d) which have not been invoked in the show cause notice are not attracted as the goods are not prohibited goods. On the other hand, learned Member (Judicial) has held that the goods are liable to confiscation under Section 111 in view of the misdeclaration in Bill of Lading, invoice and manifest. As regards Section 111(m) of the Customs Act, 1962, the expression "Entry" has definite connotation, namely, an entry made in a Bill of Entry, Shipping Bill or Bill of Export, Entry referred to in Section 82 or Entry made under the regulations, made under Section 84. In the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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