9911796707
TMI Blog1998 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Commissioner of Customs, Mumbai. 2. The brief facts are that the respondents filed 4 Bills of Entry for clearance of 4 consignments of low carbon mild steel defective sheets totally weighing 1000 MT on 18-10-1984. The goods imported are canalised items as per Sr. No. 56 Part A Appendix 5 of ITC Policy and could be imported through only canalising agency and could not be imported under OGL. The respondents wrote to the Collector of Customs to say that they are actual users of the materials and had imported it as such and that they had admitted that it was a mistake to have imported because the goods are canalised for import. They requested in their letter dated 18-10-1984 that the matter may be adjudicated at an early date without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items and they have managed to get the goods adjudicated on a fine taking the margin of profit as 25% of the cif value whereas the actual margin of profit was much higher. The office premises of the Customs House Agent were searched and some incriminating documents were taken over. Statement of Respondents Shri Raj Kumar, Proprietor of M/s. Rachna Industries was recorded under Section 108 of the Customs Act wherein he admitted that he was fully aware of the provisions of the Import Control Trade Policy. Enquiries were also made at Faridabad where the respondents claimed to have a factory and it was found that the unit was closed since 1979 and the power connection of the unit has also been disconnected long time back as per the inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of entry inwards and filing of the IGM. The ld. DR further argued that the question of applying Section 111 of the Customs Act for confiscation will not arise when the goods have not been brought into India. It was pleaded that the adjudicating authority was mislead by the respondents to claim that they have imported the goods under OGL by mistake and that they are actual users of the material because investigation have shown that they unit was closed since 1979. Therefore, it was contended that the fine in lieu of confiscation must be much higher than that ordered by the Additional Collector and that authority should have also imposed penalty on the respondents in an adjudication order which should have been initiated only after the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in this case, the Import General Manifest for the goods has been filed only on 26-10-1984 and the entry inwards in respect of the vessel has been granted on 20-11-1984. Bs/E had been filed even prior to the grant of entry inwards under advance noting of the Bs/E. The adjudication orders of the Additional Collector is dated 22-10-1984 which is prior to the filing of IGM in this case and also the granting of inwards entry. The order purports to confiscate the goods under Section 111(d) of the Customs Act. This section reads as follows : Confiscation of improperly imported goods - The following goods brought from a place outside India shall be liable to confiscation ...... and sub-clause (d) reads as - any goods which are imported or at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time when the impugned orders of the Additional Collector were passed. In this view of the matter, the orders of adjudication passed by the Additional Collector suffer from the infirmity of having confiscated goods which had not even become available for such confiscation, and such an order of confiscation will be void ab initio. In such a view of the matter, the whole adjudication of the case and the orders passed are vitiated and the matters will, therefore, have to be adjudicated de novo in accordance with law. The questions that the fine imposed is not commensurate with the margin of profit on the goods, or that the Additional Collector ought to have imposed penalty also on the respondents, will have to be considered only in the de nov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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