2004 (4) TMI 236 - AT - Central Excise

Summary

Issues: Missing diamonds case; Liability for misdeclaration; Imposition of penalty; Ownership of goods; Applicability of Customs Act to foreigners.

Analysis:
1. Missing Diamonds Case: The case involves a consignment of rough diamonds where the declared weight was 5344.50 carats, but only 2786.18 carats were found upon examination. The discrepancy led to suspicions of wrong declaration or packing error. The Commissioner held the goods liable for confiscation under Section 111(m) of the Customs Act but allowed re-export on payment of a fine of Rs. 1,50,000 without imposing any penalty. The shipper and importer both wanted the goods to be reshipped, indicating a possible error rather than intentional misdeclaration.

2. Liability for Misdeclaration: The Commissioner attributed the misdeclaration to the shipper, leading to the confiscation of the goods. However, the Commissioner faced difficulty in accusing the importer of misdeclaration as all declarations were made based on documents received from the shipper. The department failed to establish the importer's knowledge of the missing diamonds, resulting in the decision to accuse the shipper to resolve the issue. The Revenue's plea for imposing a penalty on the importer was rejected.

3. Imposition of Penalty: The Revenue contested the Commissioner's decision not to impose a penalty on the importer and holding the shipper responsible for misdeclaration. The Revenue argued that the redemption fine should have been imposed on the importer, being the owner of the goods. However, the Tribunal clarified that a fine is imposed on goods, not individuals. The Tribunal also highlighted the distinction between fine and penalty, emphasizing that the importer's liability was not established in this case.

4. Ownership of Goods: The Tribunal analyzed the ownership of the goods, stating that the ownership rests with the shipper until payment is made. The importer's ownership was questioned as both the importer and shipper requested re-export of the goods, indicating that ownership had not transferred. The Tribunal rejected the Revenue's argument that the importer should be held liable for the misdeclaration without sufficient evidence of ownership transfer.

5. Applicability of Customs Act to Foreigners: The Tribunal addressed the Revenue's argument regarding the applicability of the Customs Act to foreigners, emphasizing that the Act extends to all individuals within India's jurisdiction, including foreigners visiting the country. The Tribunal dismissed the plea that the shipper, being a foreigner, should not be held accountable under the Customs Act, especially since the shipper was represented in India and requested reshipment of the goods.

6. Conclusion: The Tribunal rejected the appeal, maintaining the Commissioner's decision to allow re-export of the diamonds upon payment of a fine without imposing a penalty. The case highlighted the complexities of determining liability in cases of missing goods and misdeclaration, emphasizing the importance of evidence and ownership in such matters.