1992 (6) TMI 121 - AT - Customs

Summary

Issues Involved:

1. Confiscation of goods under Section 111(d) of the Customs Act, 1962.
2. Penalty on M/s. Savitri Electronics and Shri Onkar Nath Bhardwaj under Section 112(a) of the Customs Act, 1962.
3. Entitlement of M/s. Esvee Enterprises to clear the goods.
4. Legality of the importation and the role of the foreign supplier.

Issue-wise Detailed Analysis:

1. Confiscation of Goods under Section 111(d) of the Customs Act, 1962:

The adjudicating authority held that the goods were liable to confiscation under Section 111(d) of the Customs Act, 1962, as M/s. Savitri Electronics had not produced any valid Actual User Import Licence. The goods were found to be almost complete 'car cassette' players in CKD/SKD condition, and the firm was deemed to be fictitious with no manufacturing facility. The authority rejected the claim by M/s. Esvee Enterprises, suspecting that they had come forward to claim the goods to prevent confiscation. However, the Tribunal found that the foreign supplier retained ownership of the goods as the original consignee, M/s. Savitri Electronics, did not retire the documents from the bank. The Tribunal referenced the Supreme Court judgment in Union of India v. Sampat Raj Dugar, which held that the ownership of the goods continues to vest with the exporter if the importer fails to pay for the goods. Therefore, the Tribunal concluded that the goods should not be confiscated and M/s. Esvee Enterprises should be given an opportunity to clear the goods with a valid licence.

2. Penalty on M/s. Savitri Electronics and Shri Onkar Nath Bhardwaj under Section 112(a) of the Customs Act, 1962:

The adjudicating authority imposed penalties on M/s. Savitri Electronics and Shri Onkar Nath Bhardwaj under Section 112(a) of the Customs Act, 1962, for being involved in the illegal importation of goods. Shri Onkar Nath Bhardwaj admitted to assisting Shri O.P. Vij in floating the fictitious firm M/s. Savitri Electronics and acknowledged that the imported goods were intended for sale in the market. However, the Tribunal, considering that M/s. Savitri Electronics and Shri Onkar Nath Bhardwaj had not taken steps to clear the imported goods and the confiscation order no longer survived, decided to set aside the penalties, taking a lenient view.

3. Entitlement of M/s. Esvee Enterprises to Clear the Goods:

M/s. Esvee Enterprises claimed entitlement to clear the goods, arguing that the foreign supplier had transferred the documents in their name. They contended that the ownership of the goods continued to vest with the foreign supplier, who had the right to transfer the documents to another buyer. The Tribunal agreed with this argument, referencing the Supreme Court judgment in Union of India v. Sampat Raj Dugar, which supported the position that the exporter retains ownership if the importer fails to pay for the goods. The Tribunal directed that M/s. Esvee Enterprises should be given an opportunity to clear the goods with a valid licence, provided the import was otherwise legal and permissible.

4. Legality of the Importation and the Role of the Foreign Supplier:

The Tribunal found no evidence that the foreign supplier was involved in any fraud or attempted illegal importation. The documents were sent on a collection basis, and since M/s. Savitri Electronics did not retire them, the foreign supplier retained ownership. The Tribunal concluded that the foreign supplier was entitled to either find another buyer or ask for re-export of the goods. The Tribunal directed that M/s. Esvee Enterprises should be allowed to clear the goods against a valid licence, ensuring that the import was legal and permissible.

Conclusion:

The Tribunal set aside the impugned order, directing that M/s. Esvee Enterprises should be given an opportunity to clear the goods against a valid licence after establishing the legality of the import. The penalties on M/s. Savitri Electronics and Shri Onkar Nath Bhardwaj were also set aside, considering the circumstances and their lack of action to clear the goods. The appeals were disposed of accordingly.