2007 (2) TMI 534 - AT - Customs

Claim for re-export of the goods - Confiscation of goods - import made by unknown persons and without IE Code - goods became tainted as prohibited , thereby attracting Section 111(d) - Commissioner turned down the request of the appellants for permission to re-export the goods - HELD THAT - The appellants were genuinely transacting business, in the normal course of international trade, with M/s. Arks Appliances P. Ltd. When M/s. Arks Appliances P. Ltd. expressed their inability to take delivery of the goods on account of financial problems, the appellants advised their shipping agents to make arrangements for reshipment of the goods to Dubai. The shipping agents informed the appellants that they were taking necessary steps for such reshipment. Later on, they informed the appellants that the DRI had destuffed the container and seized the goods for investigations. These facts were stated by the appellants in their letter addressed to the Consulate General, who was a senior officer of Customs. Earlier, in a letter, M/s. Samwin Hong Kong Ltd. (who had supplied the goods to the appellants) had informed the Commissioner that the appellants were the rightful owners of the goods and were eligible to get the same back, as the ultimate buyer in Chennai had failed to take delivery. From all these documentary materials, which were not examined by the Commissioner, it would appear that the appellants were only doing genuine business in relation to the subject goods and were not colluding with their Indian customer. Therefore we hold that the appellants are entitled to claim re-export of the goods. Against such a claim, the absolute confiscation of the goods by the Commissioner is bad in law. He should have permitted the appellants to redeem the goods on payment of a reasonable fine, for the purpose of re-export. In the result, while upholding the confiscation (not absolute) of the goods, we direct the lower authority to allow the appellants to redeem the goods, for the purpose of re-export, on payment of a fine to be determined by the Commissioner u/s 125 of the Customs Act by taking into account the present market value of the goods. The party shall be given an effective opportunity of being heard on what should be the fine to be paid by them for redeeming the goods for the purpose of re-export. The appeal is disposed of.

Issues Involved:
1. Legality of the seizure and confiscation of the goods.
2. Ownership and right to claim the goods.
3. Request for re-export of the goods.
4. Compliance with legal provisions regarding import and IE Code.
5. Application of judicial precedents in similar cases.

Detailed Analysis:

1. Legality of the Seizure and Confiscation of the Goods:
The Directorate of Revenue Intelligence (DRI) identified and seized an unclaimed import container containing VCD players, which was lying at the Central Warehousing Corporation (CWC), Virugambakkam, Chennai. The goods were seized under a mahazar dated 5-8-2003 as there was no claimant and no Bill of Entry filed. The show-cause notice dated 22-9-2003 proposed to confiscate the goods under Section 111(d) of the Customs Act, 1962, due to the absence of a valid Import Export Code (IE Code) and the unclaimed status of the goods.

2. Ownership and Right to Claim the Goods:
M/s. Al-Futtaim Engineering, UAE, claimed ownership of the goods, stating that they had shipped the VCD players to M/s. Arks Appliances Pvt. Ltd., Pondicherry, based on an order. However, M/s. Arks Appliances Pvt. Ltd. failed to open a Letter of Credit and abandoned the goods due to financial problems. The appellants argued that they retained ownership as they had not received payment for the goods, citing the Supreme Court's judgment in Union of India v. Sampath Raj Dugar, which held that the exporter retains ownership if the importer abandons the goods without paying.

3. Request for Re-export of the Goods:
The appellants requested permission to re-export the goods, relying on judicial precedents that allow re-export in cases where the importer abandons the goods. They cited several cases, including Union of India v. Sampath Raj Dugar and Savitri Electronics Co. v. Collector of Customs, where the courts permitted re-export of goods when the foreign supplier retained ownership due to non-payment by the importer.

4. Compliance with Legal Provisions Regarding Import and IE Code:
The goods were imported in the name of M/s. Arks Appliances Pvt. Ltd., which had an IE Code. However, the company did not have an office at the address mentioned in the Bill of Lading, leading to the seizure. The appellants argued that the existence of the IE Code and the genuine business transaction should suffice for compliance, despite the incorrect address.

5. Application of Judicial Precedents in Similar Cases:
The Commissioner of Customs ordered absolute confiscation, citing the Supreme Court's decision in Commissioner of Customs, Kolkata v. Grand Prime Ltd., where re-export was denied due to collusion between the importer and exporter. However, the Tribunal distinguished this case, noting no evidence of collusion between the appellants and M/s. Arks Appliances Pvt. Ltd. The Tribunal relied on Sampath Raj Dugar and other cases supporting re-export when the importer abandons the goods without payment.

Conclusion:
The Tribunal upheld the confiscation but not absolute confiscation, directing the Commissioner to allow the appellants to redeem the goods for re-export on payment of a fine. The fine should be determined based on the present market value of the goods, with the appellants given an opportunity to be heard. The decision emphasizes the appellants' genuine business intentions and the absence of collusion, aligning with judicial precedents that support re-export in such scenarios.

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