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TMI Blog1996 (3) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... mported machine had been set up reported to the Collector of Customs, Madras that the appellant had set up one unit of single colour offset printing machine and two units of two colour offset printing machine and there was no four colour offset printing machine in the premises. Officers of the Madras Customs House inspected the machines and recorded statements of appellant s proprietor. It was found the machines imported required specific licence. There was also misdeclaration of the description and number of machines as also of valuation. Show cause notice was issued to show cause against confiscation under clauses (d) and (m) of Section 111 of the Customs Act, 1962. Appellant resisted the notice. The Collector confirmed the notice, confiscating the three machines fixing redemption fine of Rs. 50,000.00 and demanding differential duty of Rs. 1,36,601.75. It was directed that on failure to redeem within twenty days from the date of receipt of the order, the machines shall stand absolutely confiscated. Penalty of Rs. 20,000.00 was also imposed on the appellant. This order is now challenged. 2. On behalf of the appellant, the following contentions ave been urged : 1. Clearance h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Act. In Euresian Equipment and Chemicals Ltd. and Others v. Collector of Customs and Others - 1980 (6) E.L.T. 38, which dealt with a case of export it was held by a full Bench of the same High Court that the accrued liability to confiscation is not wiped out merely because goods have actually been exported after obtaining necessary permission for clearance and even if actual confiscation is not practicable, personal penalty is imposable. A similar view was taken by the Calcutta High Court in the case of import in Chandrakant Seth v. Collector of Customs - 1993 (68) E.L.T. 289. It was held that proceedings under Section 24 or 128 of the Act could not amount to review of the order of release of goods under Section 47. The Madras High Court has taken a similar view in Madanlal Steel Industries Ltd. v. Union of India - 1991 (56) E.L.T. 705 and in Cannon Steels Pvt. Ltd. and Another v. Union of India and Others - [1993] 41 ECC 161. We also notice the same view taken by some Benches of the Tribunal in N. Devidas and Company v. Collector of Customs, Bombay and R.K. Industries v. Collector of Customs and Central Excise - 1989 (39) E.L.T. 316. 5. Perhaps the earliest decision w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 1992 (1) SCALE 34. The Supreme Court agreed with the view of the High Court that there was no short levy as the importer was not liable to pay any separate duty on the containers. As the import of edible oil in stainless steel containers was in accordance with international marketing practice, the containers were not liable to be confiscated. The Supreme Court, in that view, did not consider it necessary to express any opinion on the findings recorded by the High Court so far as the interpretation of Sections 28 and 47 of the Customs Act, 1962 was concerned. 7. A three-Member Bench of the Tribunal, in M/s. Madura Coats v. Collector of Central Excise, Bangalore, after considering the decision of the Supreme Court in M/s. East India Commercial Co. Ltd. v. Collector of Customs, Calcutta, 1983 (13) E.L.T. 1342 (SC) = AIR 1962 SC 1893, followed by the Bombay High Court in Commissioner of IncomeTax v. Smt. Godavaridevi Saraf, 1978 (2) E.L.T. 624 and that of a larger Bench of the Tribunal in M/s. Atma Steels Pvt. Ltd. and Others v. Collector of Central Excise, Chandigarh and Others, 1984 (17) E.L.T. 331, held : The Tribunal has to proceed in accordance with the decision in Atm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, such a case was not put forward in the reply to the show cause notice issued by the Collector except say that the containers were opened at ICD Coimbatore and verified before clearance. Even assuming that the contents of the containers were examined, since they were in semi knocked down condition, the proper officer could not have realised that the contents constituted parts of three machines and not of one machine as declared. This is clearly a case of deliberate suppression of facts by the parties connected with the import which led to mistake on the part of the proper officer. On this ground it has to be held that the order passed under Section 47 of the Act did not attach any finality to the satisfaction of the proper officer that the goods imported were not prohibited goods. In fact, this is a case where the proper officer did not and had no opportunity to apply his mind to the question whether the goods imported were or were not prohibited goods. He went by the documents presented before him and accepted that there was only one machine of a particular variety imported without carefully scrutinising the contents of the container and without verifying whether the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empt to export contrary to law. On that ground itself the appeal had to be allowed. However, the Tribunal proceeded to consider the argument based on the bond and relying on the earlier decision in the case Grauer Well (India) Ltd. v. Collector of Central Excise, Baroda - 1986 (25) E.L.T. 338 held that the goods could not have been confiscated and the proper course have been to enforce the bond. That was also a case evidently where the goods were not available for confiscation. 11. The facts in the present case are quite different. The appellant has no case that the goods are not available for confiscation. They were and are available and, therefore, the Department is not restricted to the remedy of enforcement of the bond. Point No. (3) 12. The appellant challenged also the value as determined by the Collector. The machines imported did not bear any label, name plate or inscription. Appraisal report by an expert has estimated the age. The documents are of no use in view of the misdeclaration of description and units. The machines are reported to be reconditioned machines as seen from the letter dated 10-1-1986 written by the appellant. The value of single colour machine h ..... 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