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TMI Blog2002 (7) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... apore, (herein after referred to as M/s. UNISINDO). The consignment arrived in Chennai Port but; subsequently it was got transferred to Hyderabad for clearance on admitted forged Power of Attorney, and other requests made to transfer the consignment from Chennai. DHRUVA had sought clearance of the goods under OGL Appendix 6 List 8 Part I item 689 AM 1990-93. The consignment, on examination was found to contain lead scrap weighing 4629 Kgs. (against declared wt. of 35776 kgs) the balance weight was of 22 varieties of ball bearings. The value as ascertained was :- Ball Bearing Rs. 1,69,07,185.00 Lead Scrap Rs. 1,62,013.00 Drums in which the above Goods have been received Rs. 32,000.00 Total Value Rs. 1,71,01,198.00 2(a) In his statement Shri Vikram of DHRUVA stated as follows :- (i) DHRUVA Imports Exports (P) Ltd., was started for merchant export business by him and his wife in 1991. (ii) The consignment covered by the B/E had been booked in the name of DHRUVA by Shri Kishore, who is known to him through business connection. (iii) Shri Kishore has informed him that one Shri Patel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He denied, he had visited Singapore during 1991. In the above circumstances, and in the light of the fact that the consignments pertaining to B/E, 36 dt. 31-3-92 was found to contain ball bearings as against declared goods-lead scrap. Show Cause Notice dt. 26-9-92 was issued by the Respondent Commissioner. The SCN sought to - (i) Confiscate the imported lead scrap, ball bearings and drums (under Section 111(d), (l) (m) and 119 of the Customs Act, 1962. (ii) Impose penalty under Section 112(a) on DHRUVA, SEA HORSE, Shri Kishore, Shri Patel, Shri Vikram Shri Vinay. No SCN has been issued to the Appellant herein M/s. UNISINDO, the supplier of the goods from Singapore. 3(a) All the Noticees filed reply to the SCN. Each one of them have submitted that they can be proceeded with as proposed in the SCN. In short. (i) Shri Vikram of DHRUVA point to Shri Kishore as the importer. (ii) Shri Kishore points to Shri Patel as responsible for import. (iii) Shri Vinay and SEA HORSE pleads he is ignorant and he has filed B/E because another CHA viz. Shri Vikram requested for clearance of the consignment through SEA HORSE as the goods belong to his (Shri Vikram) own comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but their Dubai buyer requested them to draw bills on Dhruva for 90 days DA. Accordingly, they drew the bills on Dhruva for 90 days through their bank State Bank of India, Bazar Ghat Branch, Hyderabad vide their invoice No. 30053 dated March 13, 1992 for US $ 16,278.08 for shipment of 2 containers of Lead scrap vide Bill of Lading No. 330565659 dated February 14,1992. (iii) In their warehouse, there was another consignment of Lead scrap plus Ball bearings, meant for shipment to Kabul via Odessa port to one of their buyers at Kabul. (iv) Delivery orders were given to their shipping Agents for both consignments as they were to be shipped out in the same week for their respective destinations i.e. 2 containers of Lead Scrap to Hyderabad (India) and two containers to Kabul. (v) They wrote a letter No. UTC/11/IND/92 dated May 20, 1992 to M/s. Dhruva for having not received the payments of the bills drawn on them for 90 days as the bills were already over due. They had tried to reach Shri Vikram over telephone before writing the letter but some lay had replied saying that Shri Vikram was not available at that time. Thereafter, they had been writing continuously letters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not Shri Vikram s mistake. Sri Vikram informed them that the Customs authorities were going to auction the goods as he (Sri Vikram) was neither claiming the goods nor going to pay the bills in the Bank. They, therefore, suggested that they would send a supplementary invoice to the Bank in Hyderabad. But this suggestion did not evoke any positive response from Sri Vikram. It seemed that as Sri Vikram was confined in a goal on account of the unintended and wrong shipment he seemed to have lost faith. They enclosed copies of their correspondence with Sri Vikram. (xi) They affirm and reiterate that nobody in India was even remotely responsible for this mishap and that punishing anybody on this count would be a total miscarriage of justice. (xii) They further affirm and reiterate that there was absolutely no mala fide intention on their part to cheat or defraud anybody in their error of wrong shipment, in fact, they had taken action against the Supervisor of their Warehouse section by sacking him from his service. (xiii) They continue to be the owners of the goods and since there was no other way to recover the actual value at Hyderabad, they would request to pass order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at least in February 1993 about the so called wrong despatch of the goods. If it is true, nothing prevented Sri Vikram to place the so called true facts before the Adjudicating Authority. It is significant to note that Sri Vikram submitted his reply to the Show-cause Notice on July 26, 1993 i.e. about 5 months after he was supposed to have known about the wrong despatch of the goods. Yet, no mention of it was made in his reply. On the contrary he has put the blame squarely on the duo S/Shri Kishore and Patel. It is, therefore, crystal clear that, for the reasons best known to them, M/s. Unisindo cooked up a cock-and-bull story in order to secure an order for re-export of the goods. Some invisible hand behind must be operating to get at the goods in this dubious and foul means. It must have pressed the services of M/s. Unisindo to achieve this goal. Therefore, I have no hesitation in rejecting the plea of M/s. Unisindo outright. They have no locus standi in the case in as much as their claim of continued ownership of goods is without any foundation whatsoever. I do not consider this as a case of wrong shipment and, therefore, the question of permitting re-export does not arise at al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed signature of one Smt. N. Rashida, his own wife, forged by Shri Kishore, as per the Hand Writing Expert, a Bill of Entry was filed to clear the goods at ICD Hyderabad. This Bill of Entry was signed by one A.V. Raja, whose whereabouts and identity could not be established. Then the Commissioner concludes. ......It shows that he took active participation in the whole affair of smuggling of the Ball and Roller Bearings. In view thereof, M/s. Dhruva have rendered the said goods liable to confiscation under Section 111(d) and 111(m) of the Customs Act, 1962......... The above findings, as arrived at, by the adjudicator, leaves no doubt, in our minds, that the import and it s diversion from Sea Port of Madras and filing of B/E, for clearance at Hyderabad, was organised in the name of M/s. Dhruva an existing firm, which was based on fraudulent forged documents signed by unknown undetermined persons; therefore it can be safely concluded that the importers in this case though declared on Bill of Entry, as M/s. DHRUVA, were fictitious non-existent or/and fraudulent. In such a case of importers, in whose name Bill of Entries had been filed, as claimant for the imported goods, but who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian importer and since the foreign buyer in that case was not a party to the fraud and the ownership of the goods continued to vest in him, such foreign suppliers were entitled to clear the goods against any valid licence or ask for re-export of the goods. We find, that in the facts of this case, the decision of Savitri Electronics should have been applied and reshipment as requested granted. (e) These cases of the Tribunal as found applicable by us as herein above, rely upon, the law as settled by the Supreme Court in the case of UOI v. Sampath Rai Dugar [1992 (58) E.L.T. 163 (S.C.)]. The S.C. in that case, on a finding that the first respondent was not a party to any spurious or other fraudulent plan hatched, held that re-export could be allowed. This case was decided under the Imports and Exports (Control Act) read with Customs Act, 1962, the Import Control Law, applicable as in this case. Therefore, the conditions under which re-export could be allowed, as per the law laid down by S.C., in the case of Sampath Rai Dugar (supra), should have been the factor to be considered by the Collector. The findings in the impugned order, in para 60.1 60.2 as extracted herein above, rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd additional freight. While passing an order for re-shipment in lieu of confiscation it has to be verified that payment, for the goods has not been made to the suppliers abroad or if made there is evidence to show that foreign exchange is being received back on re-shipment. Considering these directions in the Manual issued by the Department, which the adjudicator was bound to follow, then, even if the goods are found to be prohibited for import, when there is no finding of a deliberate infringement of ITC regulation, as also once it is arrived at by the Adjudicator that the payment for the goods has not been made to the suppliers abroad and the foreign shipper is not involved in the spurious activity of the subject import, and clearance on B/E is by a fictitious non-existent person an order for reshipment should have been granted. (h) Considering the counter/cross objections filed to this appeal by the Revenue, we find (i) As regards the matter of purchase orders presented along with the Bill of Entry not giving any quantity and the same being fabricated, does not induce us to change our views. Since Shri Vikram and Shri Kishore in concert have been found by us to have fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Board s instruction in the Manual on this subject have not been followed, which we find were applicable and binding on the Adjudicator. We cannot, therefore, uphold the order of absolute confiscation of the goods and refusal of reshipment as arrived at. The entire goods i.e lead scrap, drums and the Ball Bearings therein should have been allowed for reshipment, if found necessary on a nominal fine, if some of the goods were found to be restricted/banned for import. From the impugned order, we do not find, any effort made to determine as to what was the value as per Section 14 of the Customs Act of the goods i.e. lead scrap, Ball Bearings permissible and restricted under import. The determination of value under Section 14 was required to be arrived at by the proper officer, as the Mazhar values cannot be accepted as Section 14 value. After arriving at these findings, a nominal reshipment fine only related to banned/restricted value goods, should have been determined. Since no valuation has been separately arrived at, we are not in a position to determine; as to what could be the nominal fine for re-shipment in the facts of this case. We would therefore, set aside the order and r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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