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TMI Blog1993 (11) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheth, Partner of Sunil Shipping Agency, CHA (Appeal C/633/92-Bom.) Rs. 20,000/- (iii) Shri Kishore Bhagat (Appeal No. C/632/92-Bom.) Rs. 20,000/- 3. Shri Biren Shah, has prayed for the following reliefs :- (i) to set aside the order imposing penalty on him, (ii) to set aside the order of absolute confiscation of the goods, (iii) to order clearance of the goods on payment of applicable duty against any valid licence without any fine and penalty, (iv) alternatively to allow redemption of goods on payment of reasonable fine in lieu of confiscation if the prayer for release without fine is not agreed to. The other two appellants have only challenged the penalties imposed on them. 4.1 The facts of the case can be briefly stated as under. On the basis of information, on 29-12-1990, the officers of Marine and Preventive Wing of Bombay Customs (Preventive) Collectorate searched the room at Welcome Hotel, Bombay, which was occupied by one M.D. Pallaria. During the search, large number of incriminating documents showing trafficking of goods imported duty free under Import Export Pass books issued to various manufacturers Exporters/Export Houses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed by him for supply to be effected in the name of Vikram Overseas. But the trouble arose for him because M/s. Vikram Overseas, after the commencement of investigation have refused to clear the goods, and did not retire the documents by giving the reason as not ordered by them. Hence, Shri Shah pleaded with the Customs authorities that since the goods were ordered by him in the name of Vikram Overseas, the foreign suppliers have written to them that they will redraw the documents in his (Biren Shah s) name. Accordingly he has got the documents in his name. He should be permitted to file the Bill of Entry and clear the goods on payment of duty applicable to the goods. However, this request was not accepted. In the adjudication proceedings held by the Collector, the goods were absolutely confiscated and Shri Pallaria, Vikram Overseas, Shri Biren Shah, Mahendra Sheth (CHA) and Kishore Bhagat were imposed penalties by the Collector. The Collector also rejected the claim for reshipment made by the suppliers. 4.2 In so far as the appellants Mahendra Sheth and Kishore Bhagat are concerned, their alleged role is actively conniving with S/Shri Pallaria and Biren Shah in their traffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of the goods and also the premium on receipt of the goods. (v) In an earlier letter dt. 13-1-1991, they have specifically referred to the consignment imported against M/s. Vikram Overseas and sought for permission to file Bill of Entry and clear the goods on payment of duty. The ground urged for this request is that suppliers are pressing hard to make the payment, since the goods were ordered by Biren Shah and M/s. Vikram Overseas have not retired the documents, since they have not ordered for the goods. (vi) As seen from the letter of Shri Biren Shah dt. 14-1-1991, he has indicated the goods imported under Import-Export Pass Book Ref. No. 90/659-A dt. 28/9 of M/s. Conquest (Japan) Inc. for import of 75 cartons of staple pins as the subject matter of his letter. In the said letter, he has agreed that there has been a contravention of Import Policy and the provisions of the Customs Act. He agrees to pay duty on the goods seized by the Department and clear the goods. No mention is made about the goods being covered by any licence held by him. His request is only for allowing clearance of the goods by him on payment of duty. (vii) The factual position as revealed by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) M/s. Vikram Overseas having disclaimed the goods and the supplier having transferred the documents in Shri Biren Shah s name, he should have been permitted to file the Bill of Entry and clear the goods. Since the goods are yet to be cleared and they were disclaimed by M/s. Vikram Overseas Shri Biren Shah holding documents for the goods transferred in his name, can hold himself out to be the importer. (iv) Even though goods were sought to be cleared duty free under Import-Export pass book Shri Biren Shah is willing to pay duty and also provide valid REP licence. Hence he would plead for remand so that the licence held by him can be considered for acceptance and clearance allowed on payment of duty in which case no penalty can be sustained. (v) In the alternative, he would plead for allowing redemption of goods to Shri Biren Shah on payment of reasonable redemption fine, since the goods are not banned for import and they are not in the negative list. (vi) He also pleaded that the Steamer Agents would have moved an amendment for the manifest, but according to his knowledge no such amendments were permitted to be made on account of instructions from the Preventive Collectorate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for clearance against pass book awaiting exemption under Notification 2/86-Cus. Bill of Entry was caused to be filed by Shri Biren Shah through Shri Kishor Bhagat using the C.H.A. M/s. Sunil Shipping Agency. In the normal course, on production of the pass book in the name of Vikram Overseas sold on premium to Biren Shah, the goods would have been cleared free of duty and come in the hands of Shri Biren Shah. But the officers of Customs, acting on information carried out a raid in the hotel room occupied by Shri Pallaria on 29-12-1990 and recovered various incriminating documents. They also recorded the statements of S/Shri Pallaria and Biren Shah. In these investigations, the subject consignment is also figuring. Hence, alerted by the investigation, M/s. Vikram Overseas, instead of responding to summons, disclaimed the goods initially, but in the letter dated 4-4-1991, they waived the Show Cause Notice and pleaded that the pass book was handed over to late Shri Jain, who was managing the imports and hence not able to furnish any details. They have requested for release of the goods on payment of duty and penalty. They have not come before us challenging the order of absolute con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave an idea of clearing the goods at the time of adjudication by paying duty and penalty. But they have not pursued their claim for redemption of the goods on payment of duty and fine before us. In such circumstances, we are to consider only the claim of Shri Biren Shah for treating him to be the importer. We cannot persuade ourselves to accept him either as a person, who held out as an importer by getting the documents in his name at the time of arrival of the goods. M/s. Vikram Overseas only have filed the B/E and held themselves out to be the importer. If they disclaimed the goods, the Department cannot substitute another person as importer, in the context of the provisions of Sec. 48 of the Customs Act, whereunder if the notified importer does not clear the goods or abandon the goods, the authorities having custody of the goods can only sell the goods by auction and the law does not permit substitution of another importer. Be that as it may, in a case where a fraud has been detected in the import, the name of the importer cannot be changed in the manifest and any such amendment is not permissible under Sec. 30(3) of the Customs Act. 10.3 Moreover, if he had a licence to clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by some other person to file the bill of entry for clearance. It is almost certain that having come to know of the proceeding, the petitioner, with a view to circumvent the same, is claiming itself as importer" in order to set at naught the adjudication proceedings and the confiscation of goods. It is rather surprising that when the petitioner has accepted that its payment is against S/P, basis, instead of refusing to retire the document, it is making ingenious attempts to clear the goods which have been illegally imported into India by a fictitious firm on the strength of forged documents concerning which R.C. No. 19 of 1986 is pending. There is absolutely no scope for the petitioner to claim the right of an `importer , more so, after the first information report came to be filed on 2-12-1986 while the invoices of the petitioner bear the dates 15-12-1986 and 6-12-1986. Fraud is infinite in its variety and this is one such variety." The above observation of the Hon ble High Court apply to the facts of this case squarely, because here also the attempt is to retrieve the goods after booking of a case by substituting one importer by another. Hence we reject the prayer of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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