9911796707
TMI Blog2005 (3) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... t in June, 1998; that accordingly the goods had been received at the Odessa Port on 29-6-1998 and on 30-6-1998, the goods were taken for shipment and were thus went out of hands of the supplier, that the goods were stuffed into container Caxu-411799-4; that on 26-7-1998, the goods were re-stuffed in another container INBU-5053110; that as no direct carrier was available at that time from the Odessa to India, the goods had to be transshipped to the port of Gioia Tau Ro in Italy on 15-8-1998 where they reached on 24-8-1998 and the goods were loaded on the vessel Contship Harmony on 28-9-1998 and the consignment reached Nhava Sheva (Mumbai) on 18-9-1998 and goods were cleared out of customs charge on 6-11-1998 availing exemption under Notification No. 204/92-Cus., dated 19-5-1992 on the strength of QBAL dated 26-5-1995. 2.2 The learned Sr. Counsel, further mentioned that searches were conducted by the Directorate of Revenue Intelligence in their office and factory premises and statements were recorded on the allegation that the import licence had expired when the goods were shipped from the foreign country making the benefit of exemption under Notification No. 204/92-Cus., not avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffed in container CAXU-4117494, misdirected himself by concluding that the goods were not despatched within the validity period and he misdirected himself specifically when the evidence clearly indicated that re-stuffing was done subsequently in container INBU-5053110 which was an activity undertaken due to some practical difficulties inherent in transportation by sea post despatch. 4. The learned Sr. Counsel submitted that if the impugned goods cannot be cleared under the Advance Quantity Based Licence dated 26-5-1995, the goods may be cleared against the Alternate Licence obtained on 17-3-1998 in the name of the merchant exporter; that the said licence had been issued in the name of M/s. Phoenix Overseas Ltd.; that the said licence has been endorsed by the DGFT in the Appellant company s name vide letter dated 27-4-1998, that by letter dated 16-6-1999, the Directorate General of Foreign Trade also added their address in the licence; that this Alternate Licence was registered at Mumbai on 29-10-1998, the goods were cleared on 6-11-1998 and Release Advice was cancelled; that the Alternate Licence was valid at the time of dispute. Finally he submitted that there is no ground for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the Officers during investigation confirm that the documents were back dated; that Shri Sanjay K. Karandhikar, Manager of M/s. Marine Transport Co. Ltd., Shipping Agent, has deposed in his statement dated 24-2-1999 that Bill of Lading No. SENU-0155 was back dated so that the importer could get the benefit of duty free clearance against an expired licence; that he had also produced telex messages dated 24-9-1998, 27-11-1998 and 8-12-1998 exchanged between Mullemar Vienna and Mullimar Transport Mumbai; that Telex dated 24-9-1998 is to arrange correction of manifest in order to get the container free from the Customs as licence is expired on 30-6-1998 and Telex dated 27-11-1998 clearly shows that though the cargo was loaded and sailed on 15-8-1998, the Bill of Lading was issued dated 30-6-1990 (Back dated). The learned SDR mentioned that Shri Bhupendra Nagpal, Director (Operation) of the Appellant company, has admitted in his statement dated 3-3-1999 that Sudeep Mittal of Wickwood promised to send a Bill of Lading with remarks Goods taken for shipment 30-6-1998 ; that Shri Nagpal was also shown tow e-mail messages dated 25-9-1998 between Delhi office and Bombay Office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy reads as under : If the applicant desires to have the name of any manufacturer or jobber added to the licence, he may apply for such endorsement. Such endorsement shall be mandatory where prior import before export is a condition of the Advance licence and the licence holder desires to have the material processed through any other manufacturer or jobber. Upon such endorsement made by the licensing authority, the licence holder and co-licensees shall jointly and severally be liable for completion of export obligation. Any one of the co-licensees may import the goods in his name or in the joint names. The BG/LUT shall also be furnished in their joint names. He emphasized that the first part of Para 7.18 refers to endorsement of any manufacturer on advance licence and the second part clearly mentions that Upon such endorsement, the licence holder and co-licensees shall jointly and severally be liable for completion of export obligation. Any one of the co-licensees may import the goods in his name or in the Joint names. ; that thus co-licensee mentioned in second part only refers to the manufacturer, mentioned in first part of Para 7.18, whose name has been endorsed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endorsed on 27-4-1998 as supporting Manufacturer that is before filing the present Bill of Entry. Para 7.18 of the Hand Book of Procedure (which has already been extracted in Paragraph 6 of this Order) refers to the endorsement of the name of any manufacturer being added to the licence as per the request of the licence holder. Once such endorsement is made by the licensing authority, the licence holder and co-licensees becomes liable severally and jointly for completion of export obligation. The learned Sr. Advocate has rightly emphasized that the expression co-noticee used in the second half of Para 7.18 refers only to the manufacturer whose name is being endorsed on the licence as supporting manufacturer. Para 7.18 clearly provides that any one of the co-licensee may import the goods in his name. There is no force in the finding in the impugned Order that if they were entitled to import under the alternate licence what was the need for seeking an amendment for impleading them in the said licence as a co-licensee. The Appellants might have done this as a precaution. The fact, however, remains that their name was endorsed on the said licence on 27-4-1998. The Revenue has not con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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