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TMI Blog1995 (7) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the appeal is whether the goods which have been held to be waste and scrap and had been described as strips by the appellants were liable to confiscation for the reason of mis-description and for that reason the export made could not be taken into consideration for fulfilment of export obligations against the DECC book issued to the appellants. 2. The learned Advocate for the appellants pleaded that the export by the appellants was in pursuance to an order received by the appellants from Dubai to supply 200 MT of goods which have been for convenience of description described as strips but which could be of assorted sizes and which were required to conform to certain characteristics as set out in the order and which for convenience o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements and has merely gone by the word `strips as used in the order. He has pleaded that the buyer had accepted this material and necessary remittance had also been received by the appellants in regard to the goods in question. He has pleaded that the authorities raised no objection in regard to the valuation of the goods or that the goods did not answer to the use as per the order of the customer nor any objection has been raised by the authorities that the goods did not conform to the specifications as set out in the order of the said buyer. He has pleaded that inasmuch as what was sought to be purchased was in the nature of waste and scrap material to be used as a packing material for insulation purposes and what has been supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dutiable or prohibited. Inasmuch as the goods in question were neither dutiable nor prohibited, the same, therefore, were not liable for confiscation under this Section. There was no sub-section under Section 113 of the Customs Act which covers the case of mis-description of the goods which are neither dutiable nor prohibited. Since the goods are not liable to be confiscated under Section 113, no penalty could also be levied under Section 114 also. 3. The learned SDR adopted the reasoning of the learned lower authority. He pleaded that the goods were described as strips which would only mean that the same should have been in regular lengths having definite width which was not so in the case of the goods under confiscation. He has pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied with. He has pleaded the export of the rubber scrap material was not prohibited and therefore, the question of any action under Section 113 of the Customs Act would not arise. 4. We have given a careful thought to the pleas made by both the sides. We observe that the learned lower authority has merely stated in his order that the material sought to be exported were nothing but scrap and has observed as under :- Even if the assessees contention that the goods are of irregular shape but are supplied in terms of the contract under which they are supposed to supply rubber strips (25% irregular shaped material allowed) it is not known what prevented the exporter from giving the correct description of the material in the shipping bill in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not chosen to go into this aspect nor the goods were tested to ascertain whether the same answered to the requirements of the order so far as characteristics were concerned. The only objection taken is that instead of the goods being described as waste, the same has been described as strips. We observe that the issue has to be examined in the context of the order against which the goods have been supplied. A reading of this order clearly shows that the goods that could be supplied could be in different sizes and so long as these could be used for the purpose for which these ordered for, there could be no objection to the export notwithstanding the description strips. As it is the material has been accepted and if the goods themselves w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine whether the goods were essentially supplied in terms of the order only. There is no adverse finding as such that the goods supplied were not for the use set out in the order and as per the specifications given in the order. The learned lower authority has not adverted to these aspects nor there is any adverse finding that the goods did not conform to the characteristics as set out in the suppliers order. In view of the above, we hold that benefit of doubt has to be given to the appellants for the consignment in question as the charge of mis-declaration in regard to the goods cannot be taken to have been brought home. There is no evidence to show that appellants are guilty of any deliberate mis-declaration. The DEEC book has been issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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