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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 ..... s for consideration 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 supplied also is such material and the same has been accepted by the buyer to be as per the order placed, no action therefore could be taken against the appellants under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pleaded that the goods therefore, have to be taken to be mis-described. To a query from the Bench, how in the context of the order for supply of the goods when the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 instead of describing irregular shaped material as rubber strips. Only after the consignment is stopped and detailed examination is carried out, the party has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tics 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 were usable as packing material for insulation purposes and conforming to the characteristics as above and were in assorted sizes these could be taken to be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 issued based on the order against which the appellants have supplied goods. We hold, for the reasons already set out above, that the appellants cannot be denied th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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