9911796707
TMI Blog2006 (6) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... I therefore confiscate 30,000 yards of polyester fabrics valued at Rs. 1,72,019/- under section 111(d) (f) of the Customs Act, 1962. The goods have already been released provisionally and are not available for confiscation. These are consumer goods and are not permitted to be imported without a valid import licence. As the goods have been provisionally released and are not available for confiscation, I order that a penalty of Rs. 10,00,000/- (Rupees Ten Lacs only) be imposed under section 112 of Customs Act, 1962. I also order that the goods be assessed finally and appropriate payment of duty be recovered from the importer. 1.2. In appeal, this Tribunal vide an order dated 18-7-2000/- remanded the matter for de novo adjudication. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, liable to confiscation under Section 111(m) and 111(d) of the Customs Act, 1962 as these have been misdeclared and were also not as per specifications of the DEEC Book under which the duty free import was sought. Further the Show Cause Notice also mention Section 111(m) and not Section 111(f), which was merely typographical mistake in the adjudication order. The notice s contention that a broad nexus has been established is of no avail to them, as the goods are totally different than what has been permitted, as these are very low denierage and are also not Printed . As regards the plea that similar goods have been cleared on the same license in another Custom House, it is observed that it is not established by the Notice that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier adjudicator and the Bench, evidence to the effect that Bombay Custom House has cleared same fabrics in July, 1996 against the very same license. There was no finding arrived by the adjudicator on the said plea. Tribunal, therefore, directed by the remand order that the adjudicator was bound to arrive at a finding as to why he does not accept the license in view of the practice of Bombay Custom House mere failure on part of the importers to produce the BE could be no excuse, as the BE s would be available with Bombay Custom House and the same could have been procured by the adjudicator. The Commissioner was required and directed to arrive at findings afresh, which was not complied. 2.2. Commissioners orders on the findings of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s export products. The same reasoning finds an expression in the judgment in the case of Nitco Marbles viz. 1997 (71) ECR 287 (Tribunal). It is not disputed that the subject license is a transferred license. In any event, the goods imported are 100% polyester fabric which fact is not disputed and in the endorsement regarding the export shown in the licence viz. 10,000 pcs. Ladies long coat made out of polyester fabrics/polyester fabrics to be used as lining (dyed and printed) there is no mention of any denierage at all. The licence could not have been therefore rejected, as the goods under import and those permitted to be imported against the said licence are not materially proved to be different or not capable of resulting in the use in fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported goods remain polyester fabrics answering to description given in the licence. Discrepancy in the matter of denierage or in the matter of whether it should be dyed or printed are not of material consequence and ought to have been ignored. Non-mention of denierage in the Bill of Entry will not amount to misdeclaration as description of the goods was as per the shipping documents i.e. invoice, bill of lading, packing list, etc. Therefore contravention of Section 111 (m) could not upheld. 2.5. When contravention of Section 111(d) 111(m) are not being upheld, there is no case or cause for a fine and or upholding penalty under Section 112 of the Customs Act, 1962. 2.6. Benefit of duty free import under the license is therefore eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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