9911796707
TMI Blog2000 (10) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the material time, there was some information with the Customs about some persons attempting to clandestinely clear marble through the Kandla Port. The consignment was, therefore, subjected to thorough examination. Weighment of this consignment showed that there was an excess of 23.735 MTs of blocks and 56.05 Sq. Mts of slabs which came to about 6% and 13% of the total quantity respectively. Samples were drawn and on examination by technical authorities, the goods were found to be marble. Statements of the importers and Custom House Agents were recorded. The CHA admitted having written on one B/E that the marble was freely importable even knowing the fact that the goods were restricted item. In the statement of the CHA some other impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of fine of Rs. 8 lakhs. He imposed penalty of Rs. 5 lakhs on the importers but exonerated the CHA. He did not enhance the value but directed payment of duty on the entire goods. The present appeal has been filed against the said order. 3. We have heard Shri Anil Balani, advocate for the appellants and Shri B.K. Choubey for the respondent. 4. The first issue is of excess weight Shri Balani submitted that the standard practice in the marble trade is to ship marginal excess material. This is to compensate the buyer for the cracks and other breakages. He stated that the excess was routinely permitted and overlooked by the Customs. In fact, at sometime, about 20% excess was condoned which later on brought to 2%. He, therefore, states tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent to the issue of show cause notice, the Commissioner has voiced no reservation. His finding is that the licence does not cover the goods. He has spent considerable portion on his findings in establishing this. We have examined the various contentions of the Commissioner. 8. His first impression is that where the goods are for trading purpose, such licence cannot be used. We find that where the advance licence is made transferable and is transferred, there is no requirement that the importers should be an actual user only. It is his further findings that the benefit of the DGFT circular would apply only where the exports had been made and where the issue of licence was pending as on 30-9-96. On perusal of the paragraph (1) of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue before him was blocks in white colour, he did not have to go into the question, whether the pinkish grey, greyish white, grey dull etc. were different shades or not. 11. The circular dated 4-3-97 issued by the Director of Draw Back makes a specific mention of the DGFT circular and directs the Customs to follow the details of the colour given therein. This circular also extends the benefit of transferred licence which is the case before us. 12. On examination of the licence, previous exports and various circulars, we are convinced that the transferred licence was capable of covering the goods and therefore, the findings of the Commissioner as to the liability to confiscation under Sec. 111(d) of the marble blocks would not sus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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