9911796707
TMI Blog1992 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... shipped by the appellants M/s. SKS Trading Co. Ltd. Hong Kong to M/s. Uni Impex Corporation covered by two different Airway Bills. Air Customs officers received a tip-off informing them that electronic components are being imported from Hongkong and they were to be smuggled into country and the import is made in the name of certain fictitious persons. In the case of one of the consignments covered by appeal No. 288/92, the manifest indicated that the consignments were in the name of M/s. Uni Impex Corporation and M/s. Dad s Finance and Trading Co. On a reference made to M/s. Uni Impex Corporation, - the importer shown in the Airway Bill and in the manifest, it was revealed by them that they have not imported any consignment from outside India nor they have placed any order for any import from outside parties. They also indicated that they strongly feel that some unscrupulous elements imported the consignments by misusing their name. The Proprietor of M/s. Uni Impex Corporation also gave his statement to this effect. A statement of the Director of M/s. Dad s Finance and Trading Co., in whose name the consignment was subsequently transferred, was also recorded. He has indicated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants before adjudication, which has not been done. Even otherwise, before adjudication, the appellants have written a letter on 20-12-1991, which ought to have been considered by the adjudicating authority before treating the goods as abandoned. This letter is also followed up by a reminder, which is dated 16-4-1992; (iii) He took us through the copies of the relevant letters dated 20-12-1991 and 16-4-1992 and also the copies of the two invoices and airway bills covering the consignments. He pleaded that based on these documents, the ownership of the goods is established and a claim has also been lodged with the adjudicating authority, which was, however, not considered by the said authority, before ordering absolute confiscation of the goods; (iv) On a query by this Bench, as to whether, any L/C was opened in this case, he replied in the negative. On a further query by this Bench, as to whether, in the absence of L/C, they have sent the documents through the Bank for retirement to realise the value of the goods, he stated that based on trust and to save bank commission, they did not send the documents for retirement through bank channel. However, he is silent as to how th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nership or concern with the goods. The appellants letter dated 20-12-1991 has not been received by the Addl. Collector. The appellants have not produced any evidence of its despatch or acknowledgement from the authorities. Moreover, the address given in the letter is The Additional Collector of Customs, Bombay India . Such an address cannot ensure delivery of the letter to the Addl. Collector of Customs, Air Cargo, Sahar Airport, Bombay. Hence, the goods have been rightly held as not claimed and they, being restricted and dutiable goods have been ordered absolute confiscation because they were sought to be smuggled into the country. 5. We have considered the arguments advanced by both the sides carefully. The crucial question to be decided in this case is whether the confiscation of the goods which were imported into India in the abovesaid cases is in accordance with law. 6. The ld. Counsel, Shri Alimchandani, contended that the principles of natural justice are violated in this case, in view of the fact that the letter of the appellants dated 20-12-1991 was not considered by the adjudicating authority. The appellants had produced a letter dated December 20th 1991 addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a verbal contract is not sufficient to prove the same, and more particularly in view of the fact that both the above-said firms denied such a contract. 9. In coming to this conclusion, we had also taken into account the alleged letter written by the appellants dated 20-12-1991. In that letter, it was merely mentioned by the appellants that they had requested their air Agents in Hongkong to ask their agents in Bombay, D. Wamadeo Co. to re-ship back to Hongkong the shipment in question and they had given their undertaking that they will be responsible for demurrage and return freight charges. It was also mentioned in that letter that the above-said cargo be allowed to return to Hongkong and they will pay all the charges in this connection and they will settle all charges with their agents in Hongkong upon arrival of the goods. There is no whisper in that letter that there was a verbal contract entered into between the appellants and the above-said firms for the export of the goods. This is a circumstance which goes against the theory of verbal contract pleaded by the appellants. This clearly goes to show that the verbal contract pleaded by the appellants is only a falsity. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d certain quantities of raw silk to the second respondent. The requisite documents were sent to the first respondent s bankers with instructions to deliver the same to the second respondent on receiving the payment. When the consignment arrived at Bombay, the second respondent appeared before the Customs authorities and claimed the right to take delivery of the goods. But by that time, it was in the knowledge of the Customs authorities that she had failed to fulfil the above-said condition and by misrepresentation the advance import licence was obtained. Thereafter, proceedings were initiated against her and two other persons. In those proceedings, the first respondent, on his own, appeared and he was heard. The above facts narrated go to show that the second respondent claimed the goods. In those circumstances, their Lordship held that for the fault of the second respondent in not fulfilling the condition of licence, the first respondent cannot be made to suffer. In the facts and circumstances of that case, their Lordship held that the ownership of the goods had not vested with the second respondent. It was also held that the first respondent was the owner of the goods and there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts Exports (Control) Act, 1947 read with Imports (Control) Order, 1955. 14. In the above-cited decision, their Lordship of the Supreme Court held that the rule-making authority (Central Government) which issued the order, must be presumed to be aware of the fact that in many cases, the importer is not the owner of the goods imported at the time of their import and that he becomes their owner only at a later stage i.e. when he pays for and obtains the relevant documents. Their Lordship also held that the object underlying condition (ii) in Clause 5(3) of the Imports (Control) Order is to ensure a proper implementation of the Imports Exports (Control) Act, 1947. The idea is to hold the licensee responsible for anything and everything that happens from the time of import till they are cleared through Customs. In all such cases, the exporter is outside the country and the licensee is in India. It is at the instance of the licensee the goods are imported into the country. When there is no such licensee who holds the valid licence for the import of the goods, then the contravention of law has taken place and the goods are liable for confiscation under Section 111(d) of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) 19. It is, thus crystal clear that their Lordships were dealing with a case where the import was not contrary to law. That case was confined only to such a situation where the import was not contrary to law. But in this case, as already discussed by us, the import itself is contrary to law and since the goods in question came into the Territory of India contravening the provisions of the Import Control Order, the goods are liable for confiscation. Accordingly, the adjudicating authority has rightly confiscated the goods. In the facts and circumstances of the case, we find no reason to interfere with the order of absolute confiscation of the goods. No re-export of the goods is permissible in such circumstances. In view of the conduct of the appellants and also the fact that the goods were not covered by a valid licence and since they were cleared in the name of two firms who never made any such contract with the appellants, the absolute confiscation of the goods is justified. The question of giving option to the appellants for redeeming the same also does not arise in the facts and circumstances of the case as already narrated by us. 20. In the result, we are of the opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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