9911796707
TMI Blog2011 (6) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... d directing provisional release of the goods, goods are stated to be perishable in nature, fresh orders shall be passed within 2 months, appeal allowed by way of remand - C/S/28/11 & C/26/2011 C/S/31-35/2011 & C/36-40/2011 - - - Dated:- 27-6-2011 - Hon'ble Ms. JYOTI BALASUNDARAM, Vice-President Hon'ble Dr. CHITTARANJAN SATAPATHY, Technical Member Appearance : Shri C.Dhanasekaran, SDR , For the Appellant Shri S.Murugappan, Adv.(for Sl.No.2-6), Shri B.Satish Sundar, Adv. (for Sl.No.1) For the Respondent/s Per Jyoti Balasundaram For reasons recorded below, we grant the prayer of the Revenue for stay of operation of the impugned order and proceed to decide the appeals themselves at this stage with the consent of both sides, as it is a fit case for remand. 2. The brief facts of the case are that intelligence was gathered by the Surat DRI officers that M/s.Shree Maruti Impex and M/s.Ravi Enterprises, both Surat based firms, were indulging in import of Mulberry Raw Silk Yarn without payment of duty procured by them on High Seas Sales basis by availing the benefit of Advance Authorization Scheme without utilizing the yarn so imported at Chennai for its intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and sold the same to High Seas sellers at Bangalore; that he does not have manufacturing facility to process the imported yarn; that to finance the imports, they received money from bank through Angadia firm and that money was deposited in their bank account and then sent through RTGS to the account of the High Seas sellers to complete the transaction of purchase. During the course of investigation, the five High Seas sellers represented to the Commissioner of Customs (Imports) that Bills of Entry already filed by M/s.Ravi Enterprises and M/s.Shree Maruti Impex may be cancelled and requested permission to file fresh Bills of Entry after amendment of Import General Manifest (IGM) on the basis of request to be made by the steamer agent/liner agent and to allow clearance of goods on payment of appropriate duty. High Seas sellers then filed Writ Petition No.14735-39/2010 in the Hon'ble Madras High Court requesting that their representations dt. 23.4.2010 before the Commissioner (Import) be considered within a time frame and the above writ petition was disposed of vide a common order dt. 13.8.2010 wherein the High Court directed the Commissioner of Customs (Imports), Chennai to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority has also failed to note the various observations and evidence placed on record by the Commissioner of Customs (Seaport-Export) while passing the OIO Nos.12869/2010 and 12871/2010 both dated 13/14.09.2010 for extension of the period for issue of show cause notice for the seizure of the impugned consignments under Section 110 (2) of the Customs Act, 1962. The adjudicating authority has not assigned any reason in the impugned order-in-original as to why the submissions of the revenue should not be considered. ii) The adjudicating authority's order is a non-speaking order. There are no findings in the order-in-original for clauses (a) (b) of the order portion. The only reason cited by the adjudicating authority is that the goods are likely to deteriorate on storage for long periods and that the goods therefore should be provisionally released. The adjudicating authority has, therefore, merely given a reason for early release of the goods but has failed to furnish any reason for conferring the title on the High Seas sellers vide clause (a) and (b) of the order portion. The Commissioner has erred in allowing the High Seas sellers to file fresh Bills of Entry in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs Vs Jhunjhunwala Vanaspati [2008 (232) ELT 600 (Guj.)] wherein it was held that CESTAT was not justified in permitting filing fresh Bill of Entry after an out of charge order was issued. The above decision has been upheld by the Hon'ble Supreme Court [2009 (237 ELT A20 (SC)]. The adjudicating authority failed to take note of the above legal position. v) The adjudicating authority erred in not appreciating the definition of the term Importer given under Section 2 (26) of Customs Act, 1962 in true spirit. Section 2 (26) states that importer , in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer . As M/s.Ravi Enterprises and M/s.Shree Maruti Impex have already held themselves out to be the importers by filing the Bills of Entry in their name on the strength of the High Seas Sales Agreement / Contract and the IGM entries noted in their name and have not disclaimed the goods, no other person can be substituted as importer in their place except on the ground that they are the real owners. However, the adjudicating authority erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a High Seas Sale Agreement/contract, the High Seas sellers cannot coerce the Customs authorities to release the seized goods to them particularly when both the seller and buyer are located in India itself. The above legal position has duly been confirmed by the Hon'ble High Court of Gujarat in the case of Commissioner of Customs Vs Jhunjhunwala Vanaspati Ltd. [2008 (232) ELT 600 (Guj.)] vide para 9.4 of their judgement which is reproduced below : 9.4. In the opinion of this Court, it is clear from the conduct of the respondent that instead of finding out M/s.Magpie, to whom they sold the goods under a High Seas Sale Agreement, for recovery of their dues they are trying to pressurise the authorities for allowing them to cancel the bills of entry filed by M/s.Magpie and allow the respondent to file fresh bills of entry and substitute the name of the respondent in place of M/s.Magpie. x) The adjudicating authority has erred in allowing the High Seas sellers to file Bills of Entry after amendment to be carried out in the IGM on the basis of a request to be made by their steamer / liner agents without examining the fraud angle involved in the present case. This aspect was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to a high sea sale effected by the noticee (present respondent) who has initially imported and then transferred it on high sea sale basis to a fictitious firm, with or without motive, and once that firm was investigated and vanished from the scene, seeks to substitute themselves as the importer. The bill of entry filed by M/s.Magpie which has been duly assessed by the department is still very much on record. As such, the element of fraud which is very much involved in the present case was not an issue before Hon. Supreme Court in the case of Sampat Raj Dugar. (emphasis supplied). 10.2 This Court, having perused the aforesaid judgment of the Hon'ble apex court, is of the considered opinion that the facts of that case are different and therefore, the decision has no application to the facts of the present case. The facts of the present case are identical with the facts of the case law of Jhunjhunwala Vanaspathi Vs Commissioner of Customs. Further, compared to the Jhunjhunwala case, wherein the notified importer vanished (after assessment order / out of charge was given), the notified importer in the present case viz. M/s.Ravi Enterprises is still in existence and claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
