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TMI Blog1992 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... he order and the appellants had claimed them under Section 20 of the Customs Act, 1962. The department has however felt that the goods did not tally in quantity and number of pieces as well as value and were not identifiable with reference to the goods exported earlier under the Export certificates; as such they were not eligible for the benefit of Section 20 CA 62. Further they had been imported in contravention of the Import Trade Control Order 17/55, dated 17-12-1955. Hence, according to the Department, the goods were liable to confiscation and appellants were liable to penalty. The learned Additional Collector has accordingly confiscated them with reference to Sections 111(d) and (m) but allowed an option to the appellants to re-export these goods in lieu of confiscation, on payment of a redemption fine. He has however dropped the proceedings under Section 112.5. The appellants have submitted, in the main, that they had exported cut and polished Emeralds and Rubys of Indian origin to Hongkong. 5. The parcels in question were examined in the presence of an appraiser. On examination the re-imported goods were found to be not tallying with the goods originally exported by them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In their written submissions filed in reply to DR s submissions the appellants have basically reiterated the points made in their appeal memorandum and oral submissions and added that in this case no Bill of Entry was filed and the question of import did not arise. It was a case of return or reimport of the appellant s, own goods which was exported to the foreign buyer and emphasised that when the learned Additional Collector himself was satisfied that the appellants had not committed any offence and permitted reimport, imposition of fine was not justified. 11. The learned DR in his submissions both oral and written mainly stated that it has been admitted by the party that imported goods were not the same which has been originally exported. Hence Section 20 was not applicable and the goods were liable to confiscation, 12. He would like to draw attention to Para 9 of the order in original. Further whenever goods are confiscated, the authorities are competent to release the same on payment of redemption fine. This section nowhere specifies that the option can be given only for clearing the goods on home consumption and not for export or re-export. 13. The question of knowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances. They have in this connection referred to the correspondence exchanged with the supplier marked as annexures A, B, C, D and E and drawn attention to the learned Additional Collector s observations with reference to the same. 21. A perusal of these documents however shows that the phonogram at Annexure A dated 1-1-1988 (addressed to the foreign supplier M/s. Richstone, Hongkong) refers to the telephonic talk of 30th December 1987 and the Customs action of 1-1-1988 and the letter dated 1-1-1988 addressed to the foreign supplier M/s. Richstone, Hongkong mentions, inter alia the words As intimated to us by you for return of lots... ; And refers to shipment and P.P. form numbers and the fact that they had claimed the goods" apart from this surprise and the Custom s observations about quantity. 22. M/s. Richstone, Hongkong in the letter dated 5-1-1988 have referred to this phonogram and asked for time and in their letter dated ...-1-1988 have mentioned that we are in receipt of your letter dated 1-1-1988. You wrote us that the goods which we have sent back to you are not same as you shipped us and you are feeling in trouble, why you inform us so late after four months h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally with the particulars of original export consignment the scenario changes and the retraction or withdrawal of claim at this stage i.e. after detection of the offence has to be viewed differently. Once prima facie the claim was found to be incorrect and the Customs have reasons to believe that offence(s) had been committed and the goods were liable to confiscation and the appellants were liable to penalty and had made this fact known to the appellant the subsequent correspondence exchanged with the foreign supplier has also to be viewed with reference to this context; and even in this correspondences there is no clear cut acceptance on the part of the foreign suppliers of any mistake or wrong supply on their part as we have already seen above. They are in fact questioning the appellants about the delay and stating that it is not possible for them to say what is wrong or correct without verification and even later only talk of a possibility and that too without verification and without any plausible explanation or reason for the so-called misunderstanding. 29. Furthermore once the initial onus is discharged by the Customs it shifts on to the defendant and the appellants have, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of their talk/communications exchanged with the suppliers. The reference to the previous talk in the phonogram clearly establishes the fact that they had been in touch with the suppliers even before they were summoned by the Customs. In the above circumstances I consider that the charges with reference to Sections 111(d) and (m) and the Import Trade Control Act and order were duly established and the goods were liable to confiscation. In fact the learned Additional Collector has erred in taking a very lenient view of the matter and in not imposing a penalty on the appellant and allowing the goods to be exported. However since the Customs have not filed any cross objection or cross appeal and there is no prayer from the Customs side for considering enhancement of punishment I am not persuing this aspect further. The goods however have been rightly confiscated and the importation thereof in the above circumstances could only be ascribed to the appellants (their post-facto withdrawal of claim or denial notwithstanding) and in fact looking to the seriousness of the case and violation a higher fine would have been justified in the circumstances of the case. In any eventuality there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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