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TMI Blog2000 (1) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... . Invoice dated 19-2-1986 issued by the sellers Ramanlal, Singapore agreeing to sell 37 drums copper scrap birch shipped per ss Sindabad Merine sailing from Singapore to Mumbai bearing the Contract No. 4786/86. The net weight of the goods was 44092 pounds (20MT). By its weighment certificate issued by the sellers it is mentioned as 37 drums of copper birch and the certificate is dated 30-12-1986. By its certificate 9-2-1987 the sellers from Singapore inter alia certified that they were the factory-rejects .and they did not think it to be serviceable item. The certificate dated 10-2-1987 issued by Hitachi Cable (S) PTE Ltd. certified that the goods had no service value except for scrap value and the goods could not be considered as a serviceable item. The goods arrived on 30-12-1986 on which date the bill of entry was filed claiming the goods to be importation under OGL appendix 6 for the Import Policy for the period 1985-88. On 14-1-1987 the letter was written by importers inter alia mentioning that the previous consignment was considered as serviceable and therefore requested the Customs House to examine 100% under the Custom House supervision. By a letter dated 19-1-1987 they wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case ought not have been levied for bona fide action. He also emphasized the fact no redemption fine could be imposed inasmuch as the bona fides of the importer is very much writ large when they wrote a letter on 14-1-1987. The conduct of the appellant would show clearly that he is not an ordinary businessman who does business in a crooked way. 5. As against this ld. DR argued that the conduct of the appellant as highlighted by ld. Counsel cannot be accepted. He invited my attention to paragraph 2 and 3 of the Impugned Order. He stated that the goods have been imported in December 1986. Bill of entry was filed on 26-12-1986. Bill of entry was passed on second check basis on 30/31-12-1986. What prevented the party from clearing the goods after complying with the formalities? In the meantime the intelligence was gathered about the import of prime copper wire as indicated in paragraph 3 of the order in the guise of birch. The appellant wrote a letter on 14-1-1987. Shri Chatterjee emphasized the fact that the appellant was not as good person as Shri Sanklecha claims him to be. He stated that because of the existence of intelligence report the appellant has wrote a letter on 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to NARI specifications it mentions about existence of copper wire and also miscellaneous unalloyed copper wire having 96% of the content which is determined by electrolytic assay. But the word hydraulic has been mentioned in the specifications. Does it not mean that the goods must have been pressed hydraulically and the goods must have undergone that type of operation? If the goods have not gone into that type of operation then the term hydraulically will be meaningless. The NARI specification according to me, is a specification made by certain association and any country will not make any specification unless it was sure about existence of certain operations. The specification then mentioned by an association would not make it any meaning unless hydraulically pressed metal and has undergone that process. The process of hydraulic pressing according to me is an important element whether in a conjunctive or disjunctive manner, it is immaterial. The facts remains is hydraulic pressing is a must. If the hydraulically pressing is not a necessity a specification would not have mentioned in it. I am therefore of the view the argument made by Shri Sanklecha has to be rejected. 10. As far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and fallacy of department s case on physical examination cannot be accepted. This argument has to be rejected. As far as the mutilation is concerned, as observed earlier, the Court wanted to be very sure about the nature of the goods imported and ultimately user thereof. 12. The bona fide nature of the import by the appellant has been stressed by Shri Sanklecha. It is not as if the appellant did not know the nature of the imports made previously. In fact by its letter dated 14-1-1987 it cautioned the department about the serviceability of the imported goods. Knowing fully well the existence of the fact and the aspect regarding the absence of hydraulically press metals, the appellant tried to mutilate such circumstances by reading such letter, which could only be an after thought. The case is not based on any show cause notice, which the party itself has waived. I am therefore forced to come to this conclusion namely the possible conclusion can be made is appellant wants to be wriggle out of the situation. 13. The last but not the least is about the quantum of fine and penalty. The appellant, knew about the existence of previous imports. As noted by me earlier in the portion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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