1996 (4) TMI 129 - HC - Customs

Summary

Issues Involved:
1. Seizure and confiscation of goods by Customs Authorities.
2. Allegation of misdeclaration and unauthorized importation.
3. Right to re-ship or mutilate goods.
4. Imposition of penalty and confiscation.
5. Tribunal's findings and implications.
6. Appellant's right to clear goods after mutilation.

Detailed Analysis:

1. Seizure and Confiscation of Goods by Customs Authorities:
The appellants exported goods to India in July 1988, claiming they were copper scraps. The goods were sent in two consignments to two importers, who failed to retire the documents, leading to the goods remaining at the Port of Calcutta. In August 1988, the goods were seized by Customs Authorities. The appellants sought permission to re-ship the goods, which was refused.

2. Allegation of Misdeclaration and Unauthorized Importation:
Customs Authorities issued two Show Cause Notices to the importers on 23rd February 1989, alleging misdeclaration of 40% of the goods as copper scraps instead of copper wires, and unauthorized importation without a valid license. No Show Cause Notice was issued to the appellants, nor did the notices contain any allegations against them.

3. Right to Re-ship or Mutilate Goods:
The appellants responded to the Show Cause Notices, claiming the goods were sent pursuant to orders from the importers and sought permission to re-ship the goods if no buyer was available. The Customs Authorities held that the importers attempted to import the goods unauthorizedly and undervalued them, leading to confiscation under Section 111(m) and penalty under Section 112(a) of the Customs Act, 1962.

4. Imposition of Penalty and Confiscation:
The Adjudicating Authority found the importers guilty of attempting unauthorized importation and undervaluation, leading to confiscation and penalty. The Tribunal, however, found no contract between the appellants and importers and held that there was no misdeclaration as no Bill of Entry was filed. The Tribunal set aside the penalty on importers, granting them the benefit of doubt.

5. Tribunal's Findings and Implications:
The Tribunal's findings led the appellants to file a writ application, challenging the Adjudicating Authority's order and seeking re-shipment or release of goods after mutilation. The learned Single Judge rejected the writ, accepting the respondents' submission that the appellants attempted to smuggle and evade duty. The appellants contested this, stating there were no allegations against them and the Tribunal found no offense by the importers.

6. Appellant's Right to Clear Goods After Mutilation:
The Court found no basis for holding the appellants guilty of smuggling or duty evasion. The show cause notice and adjudication were against the importers, not the appellants. The Tribunal's finding that no offense was established invalidated the penalty and confiscation. The Court held that the Adjudicating Authority erred in not granting the appellants' prayer for re-shipment or mutilation. Under Section 24 of the Customs Act, mutilation should be allowed, and the Customs Appraising Manual supports clearance after mutilation if no mala fide intention is suspected.

Conclusion:
The Court allowed the appellants to import the goods subject to conditions:
(i) Mutilation of 40% of the goods claimed to be copper wire,
(ii) Submission of a bill of entry and payment of duty as copper scrap,
(iii) Return of original shipment documents after mutilation. The order of the Adjudicating Authority was set aside, and no costs were imposed.

Separate Judgments:
Sujit Kumar Sinha, J. concurred with the judgment.