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2004 (8) TMI 508

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..... nese supplier who, for some reason, does not want to sell a lot of his product to the same importer in India. On this occasion, the appellant imported 100,000 of such rolls in the name of Raj Enterprises. The Japanese, according to Mehta, have come to know that the Indian Government imposes a stiff customs duty on colour films and, therefore, decided to reduce their price in such a way that their product sells in India at the same price as it does, say in America and Singapore. Mehta has taken advantage of this pricing policy of the Japanese thrice before. His strategy is simplicity itself. He imports colour films all the way from Japan, warehouses them after their clearance without payment of customs duty, procures an export order from M/s .....

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..... ne Preventive Wing of Customs Preventive Commissionerate were on the prowl that night. They noticed the truck, asked a few questions, got the whole story out, seized the rolls, the truck, the container, the trailer, arrested the Hamals who did the loading, the drivers etc. Barkat Ali was nowhere in sight. After due process of law, the Commissioner confiscated the film rolls, under Section 111(h), (j) and (o) of the Customs Act, the truck, the trailer, the container under Section 115(1)(d), 115(2) and 118(b), imposed penalties on Raj Enterprises, the exporter, W.W. Shipping Agency, the shipping company who issued the bill of lading for the consignment, GAD Shipping and Transport Co. who carried the container from Dronagiri and host of othe .....

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..... e been exported but for the gang of Barkat Ali and their misdeeds. 9. The learned DR, Shri Srivastava, submitted that the goods have been rightly confiscated under Section 111(o) as they violate the condition under which they were allowed clearance without payment of duty when they were originally imported. He supported the finding of the Commissioner that penalty is leviable under the Customs Act on all the appellants. 10. We have examined the rival contentions. The goods were seized from a truck which was proceeding towards the town and not to Singapore. These goods were non-duty paid and were removed unauthorisedly. They were being removed in violation of the condition under which they were given duty free clearance. We are of the op .....

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..... e the goods are put on board, the shipping company should not have followed a wrong practice. The basis for holding that issuing a bill of lading before the goods are put on board the ship is a wrong practice is not known. Secondly, he also says that the shipping company failed to put their seal on the container after the film rolls are stuffed in Dronagiri CFS. As if it is a Phantom s seat that scares away Barkat Ali from opening the container! The reasons given by the Commissioner to impose penalty, according to us, are not enough to conclude that the shipping company was facilitating smuggling activity undertaken by now infamous Barkat Ali. Penalty imposed on the shipping company is set aside. 13. Before parting with the appeal, we may .....

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