9911796707
TMI Blog1995 (11) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... and excise officers at Delhi, Noida and Calcutta revealed that there was no such unit by the name. M/s. Shree Electronics at the given address. Hence, consignment was opened and examined in the presence of Panch witnesses. The cartons were found to contain 20,02,000 polyester film capacitors of foreign origin. They were seized on 29-5-1992 in the reasonable belief that the same were liable for action under Customs Act, 1962. Representative samples were drawn. The same were valued at Rs. 120/- per piece by the Assistant Collector of Air Cargo Complex. The total value was worked out at Rs. 24,02,400/- CIF and market value at Rs. 72,07,200/-. Ultimately, notice was issued by the Asstt. Collector to show cause to the Addl. Collector. On the ground that cause was not shown, order dated 31-3-1994 was passed by the Collector, Customs Airport confirming the show cause notice, confiscating the goods but allowing option to pay fine of Rs. 2,00,000/- in lieu of confiscation and imposing penalty of Rs. 1,00,000/- on each of the two partners, Satish Luthra (appellant in Appeal No. C/645/94-A) and Sunil Kumar (appellant in Appeal No. C/565/94-A). The firm and the partners have filed these sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no jurisdiction to seize or initiate confiscation proceedings or pass the impugned order since the goods were landed at Bombay for transhipment to Calcutta. (ii) In any event, since the bona fides of the intended transhipment to Calcutta port is undeniable, transhipment should have been allowed, in which case the Bombay Customs authority had no jurisdiction to initiate confiscation proceedings. (iii) There was violation of principles of natural justice. (iv) The valuation made in the impugned order is erroneous and has no basis at all. The order itself does not indicate how exactly the value was arrived at. (v) Since show cause notice was not served within six months from the date of the seizure, the appellants are entitled to have the goods released. POINTS (i) (ii) 4. There is no dispute that according to the documents available to Bombay Customs authority, the goods consigned from Hongkong landed at Bombay by Air India flight for transhipment to Calcutta Airport and the consignee was shown as Shree Electronics, G-41, Noida, Ghaziabad. According to the learned counsel of the appellants, since the goods were intended for transhipment to Calcutta, Bombay Customs Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort or a customs airport are mentioned in the import manifest as for transhipment - (a) to any major port as defined in the Indian Ports Act, 1908 (15 of 1908), or the customs airport at Bombay, Calcutta, Delhi or Madras, or any other customs port or customs airport which the Board may, by notification in the Official Gazette, specify in this behalf, or (b) to any other customs port or customs airport, and the proper officer is satisfied that the goods are bona fide intended for transhipment to such customs port or airport, the proper officer may allow the goods to be transhipped, without payment of duty, subject to such conditions as may be prescribed for the due arrival of such goods at the customs port or customs airport to which transhipment is allowed." A bill of transhipment is required to be presented where any imported goods are intended for transhipment. Where the import manifest mentions that the goods imported are for transhipment to major airport or customs airport at Calcutta or other designated places and the proper officer is satisfied that the goods are bona fide intended for transhipment to such customs airport or port, he may allow the goods to be tranship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivery of the import manifest or import report or (in special circumstances) may be permitted to be presented before delivery of such report. If the proper officer is satisfied that the goods are not prohibited goods and import duty and charges have been paid, clearance of goods for home consumption may be made. (c) Imported goods mentioned in import manifest as for transit in the same vessel or aircraft to any port or airport outside India or any customs port or customs airport may be allowed to be transitted without payment of duty. (Section 53) (d) Where imported goods are intended for transhipment, bill of transhipment shall be presented in the prescribed form. (Section 54) (e) If goods are mentioned in the import manifest as for transhipment to any port or airport outside India, they may be allowed to be so transhipped without payment of duty. (Section 54) (f) Where the import manifest mentions transhipment to any major port or the customs airport at Bombay, Calcutta, Delhi or Madras or any other notified customs port or customs airport the goods may be allowed to be transhipped without payment of duty subject to the conditions as may be prescribed for due arrival of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 54(2) of the Act. This is not a matter of discretion. 12. Where the import manifest mentions transhipment of imported goods into another major airport or designated customs airport or other customs port or airport it is governed by Section 53 of the Act. The legislature has made a distinction depending on the nature of the customs port or airport which is the intended destination. In cases covered by clause (a) of sub-section (3) of Section 54 i.e. major port or designated customs airport, the proper officer may allow transhipment without payment of duty subject to prescribed conditions, the conditions being intended to ensure due arrival of the goods at the destination to which transhipment is allowed. Where the destination is any customs airport or port other than those referred to in clause (a), the same consequence shall follow on condition that the proper officer is satisfied that the goods are bona fide intended for transhipment to customs port or airport. The procedure required to be followed at the destination, is indicated in Section 55 and such cases are required to be dealt with under the Act and rules and regulations. In other words, once the goods reach the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this legislation is not only to raise revenue but also to control and restrict the import, export, transport, manufacture and sale of intoxicants. Free and unrestricted use of intoxicants and illicit trade in contraband intoxicants not only means a loss of revenue to the puplic exchequer but also has a harmful effect on public health and morals. Moreover, illicit trade and smuggling of intoxicants is often committed in an organised and clandestine manner, and is difficult to detect. In the light of the above, the Court held that expression shall be liable to confiscation used in Section 63(2) of Bengal Excise Act, 1909 and may in sub-section (1) of Section 64 of that Act, in order to preserve the efficacy of the provision as an instrument for combating these anti-social activities, shall be understood as having a compulsive force. The Supreme Court in State of U.P. v. Jogendra Singh, AIR 1963 Supreme Court 1618 held as follows :- 8. There is no doubt the word may" generally does not mean must or shall . But it is well-settled that the word may is capable of meaning must or shall in the light of the context. It is also clear that where a discretion is conferred u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (3)(a) of Section 54, subject to such conditions as may be prescribed for due arrival of such goods at the customs airport at Calcutta, the proper officer is obliged to allow the goods to be transhipped to Calcutta. The conditions in this regard are prescribed by the Regulations referred to earlier. The conditions are :- (a)Bill of transhipment shall be presented to the proper officer at Bombay in the prescribed form. (b)The Collector shall have the regard to the prescribed procedure provided in clause 3 of the Regulations. (c)Manifest must show that the goods are for transhipment. (d)Denial of permission shall be preceded by reasonable opportunity of being heard. (e)Execution of bond wherever required under clause 3. (f)Sealing etc. under clause 6. (g)Payment of fee under clause 7. 16. The Bombay customs authority temporarily detained the goods on the basis of intelligence report till the consignee s address was verified. Address was shown as Shree Electronics, G-41, Noida, Ghaziabad district. The impugned order states that enquiries through customs and excise officers at Delhi, Noida and Calcutta revealed that there was not such concern in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiate adjudication proceedings. POINT (iii) 17. Appellants contend that the impugned orders are vitiated on account of principles of natural justice. Opportunity of hearing contemplated in the proviso to clause 3 of the Imported Goods (Conditions of Transhipment) Regulations, 1984 was not given to the appellants. Necessity for such hearing would arise only where a bill of transhipment is presented to the proper officer under Section 54(1) of the Act and thereupon the proper officer considers the question of granting or refusing permission for transhipment. Since the bill of transhipment has not been presented, the question of hearing under the proviso to clause 3 of the Regulations does not arise. 18. It is also contended that though show cause notice was issued, copies of all the documents relied were not furnished. The show cause notice states that copies of documents were furnished. The appellants admit that copies of certain documents were furnished. Letter dated 28-4-1993 addressed by the appellants to the Collector of Customs, NIPT Sahar, Bombay admits that copies of panchnama and 2 statements of Satish Luthra were given and copy of no other document was given. Request ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
