9911796707
TMI Blog1999 (10) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... firm Swaminarayan Enterprises placed an order in April, 1993 on Shah Mardan Dost Limited, Osaka, Japan for supply of 72 diesel engines for a total of C F prices US $ 41,000/-. The letter of credit for payment to the foreign supplier and the letter of credit opened in June for US $ 41,000/-. Subsequently the order placed on Shah Mardan Dost was cancelled and an order placed with M/s. Gurujoga Ltd., Osaka. The letter of credit was also suitably amended in September, 1993 to show Gurujoga Limited as the beneficiary. On 1st November, 1993 import general manifest for the vessel M.V. Aries-107 was filed at Kandla, which showed the presence on board the ship of a consignment of 72 diesel engines. Examination showed the goods to be not new, but se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was a local trader in petroleum products. He entered into this transaction for import of new engines on being induced to do so by Arvind Patel, who was an importer of diamonds. The appellant was all along under the impression that what was being supplied was new engines and not old. The finding in the Collector s order that the price negotiated for the goods was only for second-hand goods is not established by evidence. Appellant had informed the department, before examination of the goods, of the fact that the goods, which were received, were not that were ordered by him. Appellant s statement before the officers contained this stand. Arvind Patel s statement did not indict the appellant. The appellant had, as soon possible, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to follow. When an order is placed orally, it was the result of the conversation between the two persons. If the appellant had spoken to Arvind Patel to place the order, it would have to be shown that Arvind Patel was in a position to accept the order on behalf of the foreign supplier. This has not been done. There is some reference in the Collector s order to Arvind Patel being an indenting agent for Shahi Mardan Dost and Gurujoga Ltd. However, in that situation the normal practice of indenting agent to place order on his principal and send a copy of the order to the buyer should have been followed. There is nothing to show existence of such a document. There is no correspondence to show that appellant dealt with Arvind Patel in his capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, supported by irrevocable letter of credit was so amended by Arvind Patel or anybody else without the appellant s knowledge change the goods to be supplied from old engines to new engines. Such theory lacks credibility. 6. There is also another aspect, which we have to consider. It is contended that the appellant s suspicion arose on receiving the shipping documents. The shipping documents consisted of the bill of lading and invoices. The description of the goods in those documents corresponds to their description in the proforma invoice and the letter of credit. What is stated to have arose the appellant s suspicion is the lack of certificate by an expert that the goods were new. It is rather interesting that the appellant should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t might have come to know that the department had received information relating to the goods or was checking everything. These are only matters of speculation. 9. The appellant s claim that because he wrote this letter it must straightaway follow that he was totally ignorant of the nature of the goods is difficult to accept having regard to the evidence against the appellant that we have considered. The import of the goods was prohibited. Any person who causes import of prohibited goods would be liable to penalty under clause (a) Section 112. 10. We shall now deal with the case law cited by the Advocate for the appellant. In Uma Textiles v. C.C., 1990 (48) E.L.T. 433 the appellant before the Tribunal had ordered import of viscose staple ..... X X X X Extracts X X X X X X X X Extracts X X X X
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