2020 (2) TMI 763 - AT - Customs

Absolute Confiscation - penalty - mis-declaration of imported goods - the container was found containing lead scrap, instead of zinc scrap declared by them - appellant took a ground that they have infact ordered for zinc scrap and the supplier has mistakenly sent the lead scrap - Rule 17 (2) of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules - HELD THAT - The Rule itself provide for re-export of the goods in case the same stands illegally imported into India. As such without going into the facts as to whether such import was intentional or by mistake, we are of the view that the ends of justice would meet, if the said goods are allowed to be re-exported - the authorities are directed to allow the re-export of the goods. Penalty - HELD THAT - M/s Ruby Impex admittedly the goods found in the containers were other than the goods declared by them. The appellants have also not been able to show any evidence that the same was a mistake on the part of the supplier. As such, the said appellant is liable for penalty. Inasmuch as, the duty involved in respect of the Bill of Entry filed by them was only to the extent of ₹ 81,000/-, though the other imports made by them were also of different goods i.e. the one declared by them in the first Bill of Entry, we deem it fit to reduce the penalty to ₹ 3 lakhs. Further, as the penalty stands imposed on M/s Ruby Impex, the imposition of separate penalty on the Proprietor is not called for as the proprietor and the proprietary concern are to be considered as one and the same. Accordingly, penalty imposed upon Shri Kishan Lal Chawla, Proprietor of M/s Ruby Impex stands set aside. Appeal disposed off.

Summary

Issues:
- Confiscation of imported goods
- Imposition of penalties on various appellants

Analysis:
1. Confiscation of Imported Goods:
- The appeals arose from the same impugned order where the imported goods were confiscated, and penalties were imposed on multiple appellants. The appellant, M/s Ruby Impex, imported 8 containers of Zinc Scrap, but only one container was declared in the Bill of Entry, which was found to contain lead scrap upon examination. The appellant claimed they had ordered zinc scrap, and the supplier mistakenly sent lead scrap. They requested re-export of the goods for the remaining 7 containers, but the request was not accepted, leading to proceedings for confiscation and penalties.

2. Imposition of Penalties:
- The impugned order imposed penalties, including a personal penalty of ?25 lakhs on M/s Ruby Impex and a separate penalty of ?10 lakhs on the proprietor. Additionally, penalties of ?10 lakhs each were imposed on the CHA firm proprietor and the freight forwarding agent, along with a ?1 lakh penalty on the G. Card Holder of CHA. The appellants argued that they had ordered zinc scrap, and although the lead scrap was in contravention of rules, they should be allowed to re-export the goods as per Rule 17(2) of the Hazardous Wastes Rules.

3. Rule 17(2) Application:
- The Tribunal considered Rule 17(2) of the Hazardous Wastes Rules, which allows re-export of illegally imported hazardous wastes within 90 days. Despite the nature of the import being intentional or mistaken, the Tribunal decided to allow re-export of the goods, emphasizing the importance of justice. Consequently, the authorities were directed to permit the re-export of the goods, following the rule's provisions.

4. Penalty Reduction and Disposition:
- The Tribunal found M/s Ruby Impex liable for penalties due to the discrepancy in the declared and actual goods. The penalty was reduced to ?3 lakhs considering the duty involved in the initial Bill of Entry. The separate penalty on the proprietor was set aside, as the appellant and the proprietor were deemed the same entity. Penalties on the CHA, freight forwarding agent, and G. Card Holder were also revoked due to lack of evidence implicating them, and their appeals were allowed accordingly.

5. Conclusion:
- In conclusion, the Tribunal disposed of all appeals by allowing re-export of the goods as per Rule 17(2), reducing penalties for M/s Ruby Impex, setting aside the proprietor's penalty, and revoking penalties on other appellants due to lack of evidence. The judgment focused on upholding justice while considering legal provisions and evidence presented during the proceedings.