9911796707
TMI Blog1988 (6) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ought clearance under O.G.L. under Appx. 10 Item 58(4) of the Policy A.M. 1982. The Customs, however, objected to the clearance on the ground that the Crank Shaft imported are not new but they are old and used. 2. In the adjudication held by the Deputy Collector, he ordered confiscation but allowed redemption on payment of fine of Rs. 1,30,000/-. Being aggrieved by this order, the appellants preferred an appeal before the Collector (Appeals) unsuccessfully. Hence this appeal. 3. During the hearing of this appeal, Shri Balani made the following submissions : The Deputy Collector committed an error in holding that the goods are old and used and not new goods. The initial burden of establishing that the imported goods are old and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal); 1984 ECR 443 CEGAT. The further submission of Shri Balani was that Section 5 of the Customs Act empowered the Collector to limit the powers of the Officers of the Customs. The Board, in exercise of that Section, had limited the power of the Deputy Collector to impose fine upto Rs. one lakh only and therefore the Deputy Collector's order imposing a fine of Rs. 1,30,000/- is beyond the powers conferred on him and therefore it is without jurisdiction. It was also the contention of Shri Balani that there was no evidence as to the market price of the imported goods. In the absence of the evidence, the Deputy Collector was not justified in imposing a fine of Rs. 1,30,000/-. The further submission of Shri Balani was that eventhough the Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side could at best be administrative order and on that ground the Deputy Collector's order would not become invalid. As regards the market price, Shri Prabhu submitted that the appellants themselves have produced proof regarding the market price and even if their price is taken the fine imposed is not excessive. Shri Prabhu wanted to refer to the market enquiry made by the Department found in the file of Collector (Appeals). Since the Department had not produced the particulars either at the adjudication stage or at the appellate, stage we did not allow Shri Prabhu to submit those things. 5. We have carefully considered the submissions made on both the sides and perused the available records. The two points that arise for our conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no technical expert had examined the goods. No instrument had been employed for examination. But then what was overlooked by Shri Balani was that the proprietor was a trader in the automobile parts. He would be in a better position to know whether the goods are new or old. If on examination the proprietor had come to the conclusion that they are old and used, considerable weight will have to be attached to his observations. Customs examination is also not done by illiterate persons. The Examiners who have been doing that job for a long period would have acquired some skill sufficient to state whether the goods are old or new. It was not the observations of the Examiners that the goods looked new or 'appears new'. The positive report was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the examination and in any case did not lead any evidence to establish that the goods are not old and used. On consideration of all the evidence, we are satisfied that the Deputy Collector was justified in holding that the goods are not new but are old and used. In view of the declaration as to the description that the goods were new, there was clear violation of the provisions of Clause (m) of Section 111. There is also violation of Clause (d) of Section 111 since the Import Control Order did not permit import of second hand goods without specific licence. We, therefore, uphold the order of confiscation both under Section 111 (m) and Section 111 (d) of the Customs Act. Shri Balani's contention that there was no finding of mala fide by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of confiscation and penalty. The Board by administrative order cannot override this statutory provision. Further, Section 122 is not subject to Section 5. Even if the Board had the power under Section 5 the said power cannot be exercised in violation of the statutory power conferred under Section 122. We, therefore, reject Shri Balani's contention that the Deputy Collector's order is without jurisdiction. 9. Coming to the last of the contentions namely, that the fine levied is excessive and harsh, suffice it to say that after the Deputy Collector passed the order, the appellant had an opportunity to place before the Collector of Customs (Appeals) and before us the market price of the imported goods. Shri Balani submit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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