2011 (6) TMI 285 - AT - Customs

Advance Authorization Scheme - Assessee indulging in import of Mulberry Raw Silk Yarn without payment of duty procured by them on High Seas Sales basis by availing the benefit of Advance Authorization Scheme without utilizing the yarn so imported for its intended purpose viz. processing of such yarn, but diverting the same to the same High Seas sellers - monetary consideration for the High Seas Sales was being sent to them from the High Seas seller through Courier to show the sale of goods, and the money was then deposited in cash in their respective banks and transferred back to the accounts of the High Seas sellers. It was clearly brought out that the yarn imported duty-free was being diverted without being put to use for the intended purpose, contravention of provisions of Customs Act, 1962 - Goods provisionally released - Held that - Commissioner ought to have taken into account the findings in the report of the DRI before passing the order permitting amendment of the IGM and filing of fresh Bills of Entry by the High Seas sellers and directing provisional release of the goods, goods are stated to be perishable in nature, fresh orders shall be passed within 2 months, appeal allowed by way of remand

Issues Involved:
1. Non-consideration of Revenue's submissions.
2. Non-speaking order by the adjudicating authority.
3. Non-application of mind by the adjudicating authority.
4. Issue of already assessed Bill of Entry.
5. Definition and interpretation of "Importer."
6. Suo motu cancellation of Bills of Entry.
7. Payment considerations.
8. Confirmation of payments.
9. High Seas sellers' coercion on Customs authorities.
10. Fraud angle and amendment of Import General Manifest (IGM).
11. Applicability of Union of India Vs Sampath Raj Dugar judgment.
12. Existence of fraud/conspiracy to evade duty.

Detailed Analysis:

1. Non-consideration of Revenue's submissions:
The adjudicating authority failed to consider the submissions made by the Revenue, particularly the observations and evidence placed on record by the Commissioner of Customs (Seaport-Export) in connection with the extension of the period for issuing a show-cause notice for the seized consignments. The adjudicating authority did not provide any reason for disregarding these submissions.

2. Non-speaking order by the adjudicating authority:
The order issued by the adjudicating authority lacked detailed findings and justification for the decisions made, particularly regarding the cancellation of Bills of Entry and allowing High Seas sellers to file fresh Bills of Entry. The only reason cited was the potential deterioration of goods, which does not address the core issues of ownership and the legitimacy of the importers' claims.

3. Non-application of mind by the adjudicating authority:
The adjudicating authority's order was inconsistent and lacked clarity. It ordered the cancellation of Bills of Entry without specifying the number and did not address the status of certain Bills of Entry filed by M/s. Shree Maruti Impex. There was also a failure to correlate the Bills of Entry with the respective High Seas sellers.

4. Issue of already assessed Bill of Entry:
One Bill of Entry had already been assessed, and the goods were given out of charge. The adjudicating authority's decision to cancel this Bill of Entry and allow a fresh one was contrary to established legal principles, as highlighted in the Gujarat High Court's decision in Commissioner of Customs Vs Jhunjhunwala Vanaspati.

5. Definition and interpretation of "Importer":
The adjudicating authority did not correctly apply the definition of "Importer" under Section 2(26) of the Customs Act, 1962. M/s. Ravi Enterprises and M/s. Shree Maruti Impex had already held themselves out as importers by filing Bills of Entry and had not disclaimed the goods. The adjudicating authority erred in substituting the High Seas sellers as importers without proper justification.

6. Suo motu cancellation of Bills of Entry:
The adjudicating authority canceled the Bills of Entry filed by the importers without any request from them and without legal provision authorizing such action. This decision lacked legal basis and proper justification.

7. Payment considerations:
The adjudicating authority failed to address the issue of payments made by M/s. Ravi Enterprises and M/s. Shree Maruti Impex to the High Seas sellers. The payments were documented, but the order did not shed light on this aspect, leading to an incomplete analysis of the situation.

8. Confirmation of payments:
The adjudicating authority did not consider the confirmation of payments made to the High Seas sellers, which was documented in previous orders. This omission led to an incomplete and potentially erroneous decision.

9. High Seas sellers' coercion on Customs authorities:
The adjudicating authority did not reject the High Seas sellers' attempt to coerce Customs authorities to release the seized goods to them, despite the legal position that disputes between High Seas buyers and sellers should not involve Customs authorities.

10. Fraud angle and amendment of Import General Manifest (IGM):
The adjudicating authority allowed the amendment of the IGM without examining the fraud angle involved in the case. Legal precedents require that fraudulent intentions be considered before permitting such amendments, which was not done in this case.

11. Applicability of Union of India Vs Sampath Raj Dugar judgment:
The adjudicating authority incorrectly applied the Supreme Court's judgment in Union of India Vs Sampath Raj Dugar to the present case, which involved an element of fraud. The Gujarat High Court had previously distinguished this judgment in a similar context, which was not considered.

12. Existence of fraud/conspiracy to evade duty:
The adjudicating authority did not consider findings of fraud and conspiracy to evade duty between the High Seas sellers and buyers, as documented in previous orders. This omission led to an incomplete and potentially erroneous decision.

Conclusion:
The Tribunal agreed with the Revenue that the Commissioner should have considered the findings in the DRI report before passing the order. The impugned order was set aside, and the case was remanded to the Commissioner to pass fresh orders after considering the DRI report and furnishing a copy to the respondents. Fresh orders were to be passed within two months, with a reasonable opportunity for the respondents to be heard. The appeals were allowed by way of remand.

← Previous Next →