9911796707
TMI Blog2006 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... nce licences. 3. The Customs department raised a dispute that the imports were not within the validity period of the licence. They had since paid the Customs duty on the goods imported by them and cleared the same. In the appeal now filed, they are not pressing for the benefit of exemption notification so ordered, in view of the provisions of unjust enrichment. 4. The order confiscating the goods in question and imposing penalty are however being contested. 5. No material has been found in the show cause or in the impugned order that the description of the goods as given in the bill of entry is not correct. It is also not disputed that the marks and number, number of packages, weight in MT, value etc., indicated in the bill of entry are true and correct. In other words, there is no mis-declaration as to the description of the goods given in the Bill of Entry or of other particulars pertaining to the goods. 6. In this view of the matter, there is force found in the submission of the importer that the order of confiscation arrived at under Section 111(m) of the Customs Act, 1962 for the reason that the Bills of Lading should be of 17-9-1999 or thereabouts, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned. We do not, therefore, wish to express any definite opinion on this point." (emphasis supplied) (v) Even prima facie it was obvious to the Bench that Section 111(m) does not apply for not mentioning the correct particulars of bills of lading or date of shipment. (vi) Section 111(m) as it stood prior to amendment by Act 36 of 1973 read as under:- "Any dutiable or prohibited goods which do not correspond in any material particular with the entry made under this act or in the case of baggage with the declaration made under Section 77 in respect thereof." (vii) In Rib Tapes (India) Pvt. Ltd. v. Union of India - 1986 (26) E.L.T. 193 (SC), the Supreme Court was concerned with the question whether Section 111(m) would apply where the value declared in the Bill of Entry is not the correct value of the goods. The Supreme Court held as under - "8. ........ In this view of the matter it appears that before the amendment in 1973, Section 111(m) did not contemplate any difference in material particulars in respect of value but it referred matters other than the value. 9. It is not disputed that penalty under Section 111(m) has been imposed solely on the ground that the price show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about declaration of value. That aspect of the matter is not relevant in the present case. (ix) For the parity of reasoning which weighed with the Supreme Court to hold that incorrect declaration of value in the bill of entry would not be covered by the expression "goods which do not correspond to material particulars with the enlry made under this act" employed in unamended Section 111(m) as it stood pre 1973, incorrect mention of particulars relating to the date of Bill of Lading would also not be covered by the expression "goods which do not correspond in any other particular with the entry made under this act" employed in amended Section 111(m) as it stood after 1973. 7. The order of confiscation under Section 111(m) of the Customs Act, 1962 as arrived at therefore cannot be upheld. 8. The Commissioner has come to the conclusion that the Bill of Lading should have been dated on or around 17-9-1999 based on the following factors:- (a) the vessel was delivered into time charter on 2-9-1999 ; (b) the vessel arrived at Odessa port in April, 1999 and sailed from there on 9-9-1999; it arrived at lllychvvsk on 9-9-1999 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be "shipped on board bill of lading". It can be through Bill of Lading also. On the other hand, for the purposes of exports, para 15.15 of the Handbook refers to date of bill of lading or date of mate receipt whichever is later for bulk cargo. For the purposes of containerized cargo, the date of shipment will be reckoned with reference to "on board bill of lading" or "received for shipment bill of lading". In the absence of any reference to the type of a Bill of Lading, in para 15.14 of the Policy, even a Bill of Lading issued, by shipper for receipt of the goods will be covered by the para 15.14. In other words, the bill of lading referred to in para 15.14 of the Handbook will not be restricted to "Onboard bill of lading" only. The decision of Delhi High Court in Ahmed Oomerbhoy (Exports) Pvt. Ltd. v. U.O.I. - 1989 (42) E.L.T. 556 (Del.) also support the above view. In the absence of any finding that the goods were not handed over to the steamer agent on or before 31st July, 1999, the conclusion that the date of shipment is only 17-9-1999 or thereabouts is irrelevant to the matter. Therefore Section 111(m) of the Customs Act, 1962 will not apply. 13. When the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended from time to time. 1. Minimum c.i.f. value of Sr. No. 1 to 7 of Import Licensing Notes 3, appearing in Chapter 72 of the said ITC(HS) Classifications of Export and Import Items 1997-2002, after amendment shall read as unde XXX XXX XXX 2. Minimum c.i.f. value of Sr. No. 1 to 7 of Import Licensing Notes 4, appearing in Chapter 72 of the said ITC(HS) Classifications of Export and Import Items 1997-2002, after amendment, shall read as under: XXX XXX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recting refund of the amount had been passed on the date when Rule 10 was omitted." 23. The impugned order confiscating the goods under Section 111(d) is not valid. 24. In this view of the matter, we cannot find any reason to arrive at the findings that the material was handed over to the steamer agent for shipment on or about 31-7-1999 as held by the Commissioner. In this view of the matter, we cannot hold the goods to be unauthorisedly imported impugned as per ITC Policy applicable at the time of import of HR sheets being restricted to a value when the value was less than 317 PMT, on a reading of the ITC Policy as arrived at by the Commissioner to uphold the confiscation under Section 111(d) of the Customs Act, 1962. 25. The order of confiscation under Section 111(d) and 111(m) of the Customs Act, 1962 is not being upheld, we cannot arrive at any reason for imposing a penalty on the importer appellant. The penalty as imposed is also required to be set aside. 26. In view of our finding holding that redemption fine and penalty are not sustainable and are set aside, since the question duty liability as arrived at is not being contested, we are not arriving at ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
