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TMI Blog1992 (6) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... In their letter dated 9-4-1986 M/s. Orient Shipping Agency (P) Ltd. informed the Department that under instructions from the suppliers in Tokyo the consignors name had been amended and the new consignors were M/s. Esvee Enterprises, New Delhi. Neither M/s. Savitri Electronics Co. nor M/s. Esvee Enterprises filed any Bill of Entry for the clearance of the goods. Shri Onkar Bhardwaj appeared before the Directorate of Revenue Intelligence Officers on 13-11-1986 and deposed that one O.P. Vij obtained his signatures on blank letter heads for obtaining registration certificate from the Directorate of Industries, Jaipur and Import Licence from the Chief Controller of Imports and Exports in the name of the bogus concern M/s. Savitri Electronics. He admitted that he was being paid only small sums by Shri O.P. Vij who was financing the imports in the name of various non-existent concerns. Shri Soodesh Verma, proprietor M/s. Esvee Electronics when questioned by the D.R.I. officers deposed that he/his firm had no connection with M/s. Savitri Electronics Co. He claimed that he had written to the suppliers M/s. Kisho Shokai Yokohama, Japan on 23-12-1985 in connection with the intended import o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on account of the refusal by the original consignee to retire the documents, the ownership of the goods continued to vest with the foreign supplier. He contended that his client was entitled to clear the goods since the foreign supplier had transferred the documents in his name by instructing the concerned Bank as well as the Shipping Company. Shri Rawal reiterated his stand that in cases where the consignee does not retire the documents, the foreign supplier continues to be the owner of the goods and has the option either to have the goods re-shipped or alternatively he can transfer the documents favour of another buyer Shri Rawal added that M/s. Esvee Enterprises had to be deemed as the importers of the goods in question since after the transfer of the documents in their name they were willing to complete the necessary formalities for the clearance of the goods. He stated that his client could not retire the documents and proceed with the Customs formalities on account of the seizure of the goods. Shri Rawal reiterated his stand that the foreign supplier was entitled to find another buyer since ownership of the goods continued to vest in him and the documents having been transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nics Co. was a fictitious firm who were not equipped to carry out any manufacturing activity, the DRI officers seized the goods which on examination were found to comprise of sets of components/sub-assemblies for the manufacture of car cassette players. Shri O.N. Bhardwaj when questioned by the DRI Officers deposed that M/s. Savitri Electronics Co. was a bogus concern which was not carrying out any manufacturing activity. He disclosed that at the instance of one Shri Vij he had signed on a number of blank letter heads of the firm to enable him to obtain the Registration Certificate from the Director of Industries and Licences for the import of electronic components. Shri Bhardwaj claimed he was to receive only a nominal sum from Shri Vij who intended to sell the imported components in the market. 8. Since the documents sent on collection basis were not retired from the Bank by M/s. Savitri Electronics who were the consignees, the consignors M/s. Kishoo Shokai of Yokohama, Japan sent a fresh set of documents in favour of M/s. Esvee Enterprises through the Allahabad Bank. On 24-3-1986, the Bank informed M/s. Esvee Enterprises about the transfer of documents in their favour. 8A. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first respondent continued to be the owner. How do the aforesaid provisions make any difference to this position? The definition of importer in Section 2(26) of the Customs Act is not really relevant to the question of title. It only defines the expression importer . The first respondent does not claim to be the importer. The provision upon which strong reliance is placed by the appellants in this behalf is the one contained in Clause 5(3)(ii) of the Imports (Control) Order. Sub-clause (1) of Clause 5 specifies conditions which can be attached to an. import licence at the time of its grant. Sub-clause (2) says that a licence granted under the Order shall be subject to the conditions specified in Fifth Schedule to the Order. Sub-clause (3) sets out three other conditions mentioned as (i), (ii) and (iii) which shall attach to every import licence granted under the Order. First of these conditions says that the import licence shall be non-transferable except under the written permission of the Licensing Authority or other competent Authority. Condition (ii) - which is the provision relevant herein - says that the goods for the import of which a licence is granted shall be the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, i.e., the licensee is in India. It is at the instance of the licensee that the goods are imported into this country. Whether or not he is the owner of such goods in law, the Import (Control) Order creates a fiction that he shall be deemed to be the owner of the such goods from the time of their import till they are cleared through Customs. This fiction is created for the proper and effective implementation of the said order and the Imports and Exports (Control) Act. The fiction however cannot be carried beyond that. It cannot be employed to attribute owership of the imported goods to the exporter even in a case where he abandons them, that is, in a situation where he does not pay for and receive the documents of title. It may be that for such act of abandonment, action may be taken against him for suspension/cancellation of licence. May be some other proceedings can also be taken against him. But certainly he cannot be treated as the owner of the goods even in such a case. Holding otherwise would place the exporter in a very difficult position; he loses the goods without receiving the payment and his only remedy is to sue the importer for the price of goods and for such dama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to the fact that there is no evidence that the suppliers were a party to any fraud or attempted importation of the goods in question into India in contravention of any prohibition, in our view on the ratio of the Supreme Court judgment in the case of Union of India v. Sampat Raj Dugar (supra) the exporters were entitled to either to find another buyer of the goods or ask for re-export of the goods. 11. It is seen that the adjudicating authority held that the goods under seizure were liable to confiscation since M/s. Esvee Electronics who had not claimed the goods which were not covered by a valid import licence on the date of their shipment and even on 18-3-1986 i.e. the date of which they were imported. In this regard, it is seen that in his statement dated 13-11-1986 Shri Onkar Nath Bhardwaj had stated that Shri O.P. Vij had obtained the registration certificate in the name of M/s. Savitri Electronics from the Director of Industries and also the Import Licence from the Deputy Chief Controller of Imports and Exports, Jaipur. It is evident that Shri Onkar Nath Bhardwaj and Shri O.P. Vij intended to clear the disputed goods against the Open General Licence by claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X
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