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TMI Blog2009 (1) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... 6146 was filed by M/s. Nilesh Steel and Alloys Pvt. Ltd. on 27-12-2004, through the CHA, along with import documents and on second check appraisement basis, the goods were assessed for an assessable value of Rs. 45,77,352/- and duty thereon was assessed at Rs. 5,71,473/-. 3. Thereafter, the CHA approached the Dock Appraising Staff at Mumbai Docks for clearance of the said consignment of HMS, on production of the import documents and challan dated 31-12-2004 evidencing payment of duty thereon. Accordingly, the containers were inspected by the Dock Appraising Staff on 6-1-2005 and de-stuffing was allowed in the presence of the Customs Officers. During the time of de-stuffing the containers, certain metallic objects apparently in the shape of empty ammunition were found in the HMS and, accordingly, the ACC (Docks) and Appraiser (Docks) visited the site of de-stuffing and the de-stuffing was halted. The said Customs Officers sought the assistance of the local police and, accordingly, the officers from Wadala Police Station also were present at the site of de-stuffing. On final segregation of the HMS, it was found that certain quantities of bomb scrap, empty cartridge shells and live ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Nilesh Steel Alloys Pvt. Ltd., M/s. Crescent Exports, Shri Sanjay Mantri, Shri Yasin Kalyan, M/s. Cosco (India) Shipping Pvt. Ltd. and Shri Joy Francis, under Section 112(a) and 112(b) of the Customs Act, 1962 as under : Sl. No Name Penalty 1. M/s. Nilesh Steel Alloys Pvt. Ltd. Rs. 2,00,000/- 2. M/s. Crescent Exports Rs. 2,00,000/- 3. Shri Sanjay Mantri, MD of M/s. Nilesh Steel Alloys Pvt. Ltd. Rs. 1,00,000/- 4. Shri Yasin Kalyan, Partner of M/s. Crescent Exports Rs. 1,00,000/- 5. M/s. Cosco (India) Shipping Pvt. Ltd. Rs. 1,00,000/- 6. Shri Joy Francis, Dy Manager (Logistics) of M/s. Cosco (India) Shipping Pvt. Ltd. Rs. 50,000/- 7. M/s. M.D. Sadrani, CHA No. 11/337 Rs. 25,000/- 6. The impugned Order is passed based on the following : (i) that as per the Public Notice No. 16/2004-09, dated 15-10-2004 read with Public Notice No. 18/2004-09, dated 21-10-2004 issued by the DGFT, the importer of the metal scrap in unshredded, compressed and loose form, has to furnish the specified documents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation; (xiii) That the appellants are liable to penalty also. 7. Heard both the sides and perused the records. 8. The facts of the case are that the goods were packed in 20 containers on 10th to 13th and 16th and 17th of October, 2004 under the supervision of the Inspection Agency, M/s. SGS Iran Ltd., as is evident from the Inspection Report No. 650201/14301, dated 23-10-2004. 9. A Public Notice was issued by DGFT on 15-10-2004 and modified on 21-10-2004, amending the Foreign Trade Policy and Handbook of Procedure, 2004-09, requiring the importers of metallic waste and scrap in unshredded, compressed and loose form to follow certain additional procedural formalities, including obtaining a pre-shipment inspection certificate in the prescribed format from a specified inspection and certification agency, given in Appendix-28, to the effect inter alia that the consignment does not contain any type of arms, ammunition, mines, shells, cartridges, radio active contaminated or any other explosive material, in any form, either used or otherwise. The importers were also required to submit a copy of the contract between them and the exporter stipulating that the consignment does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original importer M/s. Crescent did not furnish any sale contract documents between themselves and the foreign supplier -M/s. Ansar Koosha Trading Co., Iran stipulating that the consignment does not contain any type of arms, ammunition, mines, shells, cartridges etc., while seeking clearance of the imported scrap. This was a mandatory requirement as per the Public Notice No. 16/2004-09, dated 15-10-2004 issued by the DGFT. The importer, however, furnished pre-shipment inspection certificate issued by M/s. SGS Iran Ltd., which were not from amongst the specified inspection and certification agencies given in Appendix 28. 15. The appellants have contended that M/s. SGS is an accredited Group, having international reputation in the field inter alia of inspection and certification and are having their activities spread all over the world, including India and Iran and that M/s. SGS cannot be considered as fictitious agency; that M/s. SGS India is an approved agency for the purpose of pre-shipmcnt inspection and certification; that Group as a whole has to be considered for their recognition and not a particular office in a particular country; that looked from this angle, the certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es without fuse and 264 live rounds, 220 kg big and medium empty rounds, 184 pieces small empty rounds were found in the scrap material in 20 containers. During the call - (1) the Military Shells without fuse were positively identified as containing Explosive by sniffer dog liya and lyka (2) when a small portion of Explosive was set on fire it underwent deflagration (Rapid burning with golden yellow flame) which is an indication of high explosives (3) a small portion of Explosive Scrap from within the Shell was also tested, using explosive Testing Kit when it was confirmed that it is high explosive and may be TNT, Dynamite or C4. The Sample test display Orange colour which is an indication TNT, Dynamite or C4 explosive ... (4) the chemical found within the Military Shell was also tested positively using explosive Detector by the BDDS Team. Live Ammunition was then placed near a cemented compound wall and covered on 03 sides with 02 rows of Sand Bags to a height of 5 feet. The staff deployed at the said site has been informed to refrain from smoking or lighting bonfires near the stores area. You are kindly requested to obtain necessary permission from the Hon ble Court regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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