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TMI Blog2008 (4) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... by execution of a bond, binds himself to re-export the said containers within 6 months from the date of their importation and to furnish documentary evidence thereof to the satisfaction of the said Asst. Commissioner and to pay the duty leviable thereon in the event of the importer s failure to do so. The aforesaid period of 6 months could on sufficient cause being shown, be extended by the said Asst. Commissioner for such further period, as he may deem fit. M/s. Orient shipping accordingly executed a bond for the year 1999-2001 for Rs. 9,25,00,000/- for import of containers and submitted another bond in July 2000 fox additional Rs. 32 crores. The bond was applicable in respect of containers Imported during the period from 26-11-1999 to 26-11-2001. They imported containers during this period temporarily duty free on various vessels from time to time and declared them in different IGMs filed by them. The bond was like a running bond, whose value was arrived at on the basis of the average number of containers, frequency of shipment, notional value of cargo etc. When the containers are imported into India each container number is entered into a register known as the key register b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition in the Bombay High Court seeking appropriate orders with respect to the missing key register. In the writ petition they among other things prayed the Hon ble Court to issue an order or direction to Customs to (1) forthwith produce the key register in respect of bond no. 169/99 and cancel the said bond (2) alternatively to cancel the bond in the absence of key register, and (3) the petitioner s bond be discharged on the undertaking of the petitioner to the Court that petitioner will duly fill in all the port clearance numbers and dates in the key register upon its production. 3. Subsequent to filing of the above writ petition, the key register was traced by the department and a statement to this effect was made before the Court who disposed of the petition by observing "It will be open for the petitioners to take further steps after the inspection of the register." The key register was thereafter made available to the appellant and on inspection it was found that a number of entries were still open. The Asst. Commissioner of Customs therefore issued a letter dated 2-1-2006 enclosing thereof a list of 67 containers (which according to appellant contained details of 72 conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected the plea of time-bar as the obligation under the notification was a continuing obligation for which no time limit is set. 4. The learned advocate for the appellant submitted that the Commissioner failed to appreciate that notification nowhere specified the documents which were required to be submitted for satisfying him that the container has been re-exported. The secondary evidence produced by them has not been discussed by him in the order at all. They have submitted all the necessary documents and the customs department had failed to make necessary entries in the key register entered by them. On failure on the part of the customs department, liability cannot be cast upon the appellant. The details of re-export could not be entered in the key register in view of the fact that the said key register was not traceable. Had the same been made available, the necessary entries would have been made. He should have accepted the data sheets and other evidence produced which conclusively showed that the containers had been re-exported as evidence of re-export. The object of the notification was to facilitate the movement of containers. Thousands of containers come into and go out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding is contrary to the decision of the Tribunal in the case of CCE v. Rainbow Ink Varnish Manufacturing Co. Ltd. - 1998 (98) E.L.T. 675. 6. It may be stated that the show cause notice in the present case has been issued both to Orient Shipping Agency, the previous agent and Mitsui OSK Lines India P. Ltd., the present agent and has been confirmed against both without naming any one company in the order portion. Penalty of Rs. 1 lakh has been imposed on both Mitsui OSK Lines India P. Ltd. and Orient Shipping Agency. 7. In respect of Orient Shipping Agency the learned advocate submitted that he is contesting only the penalty as according to him no duty has been demanded from them and since in this case all the containers were exported and all documents were handed over to M/s. Mitsui OSK Lines India P. Ltd. it is they who are responsible for the non-submission of any documents and accordingly penalty cannot be imposed on them. It was submitted that Mitsui OSK Lines India P. Ltd. have filed an indemnity bond with the customs discharging them from all liabilities and taking upon them the responsibility to furnish the re-export details and since they ceased to be agents after June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the condition of the notification are not fulfilled, the time limitation is not applicable as has been held in the case of Gold n Sand - 1999 (107) E.L.T. 697 wherein the Hon ble Tribunal observed that notification 77/80 being self contained scheme limitation under Section 28 of the Customs Act does rot operate in respect of demand of duty in terms of notification so long as the demand is made in terms of condition 7 of para 1 of the notification. Sustainability of the demand to be examined strictly in terms of condition no. 7 of the notification. Attention was invited to the terms of 1st proviso to notification 104/94 dated 16-3-94 which read as provided that the importer by execution of a bond in such form and for such sum as may be specified by the Asst. Commissioner of Customs .. binds himself to re-export the said container within six months from the date of their importation and to furnish documentary evidence to the satisfaction of the said Asst. Commissioner and to pay the duty leviable on the failure of the importer to do so. It was submitted that in terms of notification the importer is bound to re-export the goods within six months and to produce documentary ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle member decision where it has been observed that the Commissioner should first have asked the appellants to produce the goods and on their failure to do so could have proceeded with confiscation. In the present case, the bond required the appellants to furnish documentary evidence regarding re-export and on their failure to do so the department has asked them to submit such proof and its only when they expressed their inability to do so that the containers were confiscated. The terms of the bond also indicated that besides action under the bond, action can be taken under the provisions of the Customs Act or any other statute. Reference was also invited to the decision of the Tribunal in the case of Venus Enterprises v. CC - 2006 (199) E.L.T. 661 where it was held that redemption fine and penalty are imposable even if goods are not available for confiscation as the provisions of Section 110 and 111 of the Customs Act speak of liability to confiscation and not actual confiscation. These two sections if read with Section 125 would logically mean even if the goods are not available for confiscation fine can be imposed in lieu of confiscation. A similar view was taken by the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when they furnish the proof of re-export or pay the duty. Even otherwise, as rightly observed by the learned DR, when the containers were imported up to the year 2001 having a re-export period of six months which could be further extended in the terms of notification and in actual practice is invariably extended, the five years period shall continue up to May 2008 as the bond was for the period November 1999 to November 2001, and as show cause notice was issued in 2006, the same was very well within time, and the applicability of time-bar does not arise. The question of having intention to evade or suppress is not involved in this case as once the proof of re-export is not submitted, duty automatically becomes payable whether there is an intention to evade or not, as such intention is very much implicit once export is not made. We further notice that though M/s. Mitsui OSK Lines India P. Ltd. became the agent in 2002, it was in the year 2005 only that they first wrote to the customs regarding the cancellation of the bonds in question. Since it was their primary obligation to furnish documentary evidence without being asked for by the customs they are themselves guilty for the dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will save the appellant from consequence of paying duty. Even if it is presumed that the container has been sold to some other person, a re-export by him will also be valid as in the present case customs has recognised Mitsui OSK India as a person taking over the responsibility of export even though the imports have been made by Orient Shipping. Therefore, such secondary evidence should be considered. The same will not be so in cases, where there is no evidence to show that the container is either lying outside India or has been scrapped by leasing agency. Thus, where the data sheet shows that they did not have any data to show regarding any transaction or disposal by the leasing company, then such containers cannot be considered as having been exported outside India and such containers for which there is no evidence shall be liable for confiscation and duty will be demandable. 13. For the above purpose, we remand the matter to the Commissioner with a direction that the secondary evidence should be considered by him in the peculiar circumstances of the case and where there is evidence to the effect that the container is lying outside India or has been disposed of by the leasing a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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