9911796707
TMI Blog2000 (3) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... major exporters of gold bullion to India. The appellants claim that on the receipt of a FAX message from M/s. Shri Ganesh Exports, A-33, Okhla Phase-1, New Delhi for supply of 200 T.T. gold bars, the appellants despatched a consignment of 200 T.T. gold bars under Air Way Bill No. NBR 09873101044 by Flight No. AI 726 dated 23-7-1998, which arrived at New Delhi Airport on 24-7-1998. The deal was to be completed on the basis of relevant documents issued through the appellants' Bankers viz., Bank of Baroda, Dubai and the Punjab National Bank (PNB), Okhla Industrial Branch, New Delhi, the Bank indicated by M/s. Shri Ganesh Exports. On receipt of the documents by PNB on 28-7-1998, PNB was unable to trace M/s. Shri Ganesh Exports at the address given. PNB thereupon informed Air India, Carriers of the goods, not to release the goods and also informed the Customs Air Cargo on 29-7-1998. On the same day Manager, PNB informed Bank of Baroda, Dubai by FAX stating that they could not find anyone with the name of M/s. Ganesh Exports at the address given and the documents were lying at the risk and cost of the consignor and immediate action be taken. Bank of Baroda, Dubai in turn informed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on an SLP filed by the Department. On 5-4-1998, the Commissioner of Customs passed the impugned order absolutely confiscating the gold bars under Section 111(d). No penalty was however, imposed on the appellants for want of jurisdiction. On 12-4-1999, the Hon'ble Supreme Court took note of the fact that an order of confiscation of the goods of the gold had already been passed by the competent authority. The SLP was dismissed as infructuous on that count, after noting the statement of the present appellants that they would take appropriate proceedings in the proper forum against the order of confiscation. The appellants thereafter filed an Appeal before the Tribunal against the order of confiscation which was disposed of by the Tribunal on 13-7-1999 directing the Commissioner to re-adjudicate the case in accordance with the principles of natural justice and under Section 124. The presently impugned order is the order passed by the Commissioner pursuant to the remand order passed by the Tribunal. 7. In the impugned order dated 16-8-1999, the Commissioner observed that the title of the goods is vested in the appellants. He however, held that the consignee in India having been show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barrier for which a Bill of Entry for home consumption is required to be filed, there cannot be any assumption that the mere fact of crossing of the goods into territorial waters of India would complete 'import'. Ld. Counsel further contends that on the basis of the Apex Court observations in Garden Silk Mills case (supra), it would follow that till the time the goods are cleared through the customs barrier after due compliance of all the procedures for home consumption, the process of import is not complete and therefore till those procedures had been duly complied with no 'import' can be said to have taken place. Since the goods in the instant case had not crossed the customs barrier, import had not been completed. It cannot therefore be alleged that there was an import or an attempt to import for the purpose of import, contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force" attracting liability to confiscation under Section 111(d) in the facts of the case. Even in terms of Para 4.5 of the Export and Import Policy (1997-2002), the goods which are restricted for import or allowed to be imported on the basis of a licence issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h import and he still had the right to find an Indian Importer for the goods, or to re-export the goods. The case of the Department which had been upheld by the Commissioner, in Para 10 of the impugned order was that the conditions of the Exemption Notification had been violated. However, in view of the Apex Court decision in Garden Silk Mills case (supra), an importer still had an option of filing the Bill of Entry along with the necessary licence before getting the goods cleared for home consumption. The question of violation of any condition for import under an Exemption Notification cannot therefore arise before the goods were actually cleared for home consumption. In any case, in the instant case, no benefit of any Exemption Notification had been claimed and therefore the violation of any Exemption Notification did not arise. 10. As regards the penalty imposed under Section 112(a) of the Customs Act, it is contended by appellants that the Commissioner had imposed the said penalty on the ground that the appellants had failed to exercise due care and caution and therefore they had become liable for penalty. Ld. Counsel in this connection drew attention to the observations of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (29) E.L.T. 81 (Tribunal)] to contend that restrictions also amount to prohibition. Further, it was also not in dispute that the goods had been brought within the Indian Customs Water for purposes of being imported. Such goods were clearly liable to confiscation under Section 111(d). He relied on the Supreme Court decision in Shaik Mohd. Omar v. C.C. Others reported in 1983 (13) E.L.T. 1439 (S.C). He referred to the Show Cause Notice where the Department had alleged of an attempt to remove the goods illegally after import. As regards the reliance placed on the Sampat Raj Dugar's case by the appellants, ld. JDR referred to Para 19 of the said judgement wherein the Apex Court had observed that they were talking of an import which was legal. In the instant case, the import was not legal since there was no licence covering the import. The ratio of the Sampat Raj Dugar's case will not therefore apply to the facts of the present case. 14. We have considered the submissions of both sides. We find from the impugned order that the Commissioner has referred to the Supreme Court decision in Sampat Raj Dugar's case and the observations of the Delhi High Court in the Writ Petition filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods have reached the stage of clearance through customs barrier for home consumption after production of a valid Bill of Entry and a licence (wherever required), we are unable to hold that liability to confiscation under Section 111 (d) has arisen in the case of the present appellants, as the goods are still within the customs barrier. It is difficult to accept the proposition that a foreign supplier exporting goods to India pursuant to an order placed on him by an Indian buyer is "bringing into India", the goods. Bringing into India of goods requires a person who is generally an importer who brings the goods for home consumption. He is different from the person who is 'sending' the goods from a place outside India. Unless it is shown that the Indian importer and the foreign supplier were in fact one and the same person, which has not been established, the foreign supplier has to be given the rights of an unpaid seller whose right and title over the goods remain protected and his right to dispose of the goods in a manner taking care of his interest and in accordance with law, sustained. In other words, the mere fact that the Indian importer at whose instance the foreign supplier h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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