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TMI Blog2012 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ying Machines of various models and 10 units of old and used photocopying machines from the overseas supplier viz. M/s. Jade Group Ltd. (Br) Sharjah, UAE, covered by Invoice No.5113 dated 07.04.2011 for a total CIF value of USD 24750 and filed the above stated Bill of Entry bearing No.3394138 as early as on 03.05.2011 with the assessment group concerned at the Tuticorin Custom House and sought the clearance of the same. Even though a Bill of entry was filed by the appellant herein for the clearance of the impugned goods as early as on 03.05.11, the respondents have not assessed the subject bills of entry. A Chartered Engineer, by name Er. P.Senthoor Pandian, Tuticorin, examined the goods and had given his report dated 09.05.2011, confirming to the description of the goods as found in the invoice filed by the appellant herein and valued the goods marginally higher than the one declared by the appellant herein, before the Customs and no diligent steps were initiated by the respondents herein to assess and clear the goods at an early date in terms of the provisions contained in the Customs Act, and the regulations made thereunder, overlooking the circular no.42/2001 issued by CBEC, Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged confession statement given by the appellant before the authorities concerned under Section 108 of the Customs Act also has been retracted though not by himself but by the legal notice of the Advocate. Under these circumstances, the reliance of the authorities that he has disowned the articles cannot be emphasised. The allegations of the appellant is that he is engaged in import and export trading in second hand digital multifunction printing and copying machine as also the second hand copier machines and its accessories and parts and consumables. According to him, the appellant also was provided with the Importer and Exporter Code viz., I.E.C. issued by the Office of the Zonal JDGFT, Chennai. He has imported a consignment comprised of 104 units of old & used Digital Multifunction Printing and Copying Machines of various models and 10 units of old and used second hand photocopying machines from the overseas supplier viz. M/s. Jade Group Ltd. (Br) Sharjah, UAE, covered by Invoice No.5113 dated 07.04.2011 for a total CIF value of USD 24750. 4. According to the respondents, even in the counter affidavit, they have categorically stated as per the report of the Chartered Engi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer, but also any person holding himself to be such importer. Even as per the decision cited by the appellant reported in 1992 (58) E.L.T. 163 (S.C.), (UOI Vs Sampat Raj Dugar) in paragraph 19 it has been held that "since the second respondent did not pay for and receive the documents of the title she did not become the owner of the said goods, which means that the first respondent continued to be the owner. How do the aforesaid provisions make any difference to this position? The definition of'importer in Section 2(26) of the Customs Act is not really relevant to the question of title. It only defines the expression 'importer'. The first respondent, does not claim to be the importer. The provision upon which strong reliance is placed by the appellants in this behalf is the one contained in Clause 5(3) (ii) of the imports (Control) Order. Sub-clause (1) of Clause 5 specifies conditions which can be attached to an import licence at the time of its grant. Sub-clause (2) says that a licence granted under the Order shall be subject to the conditions specified in Fifth Schedule to the Order. Sub-clause (3) sets out three other conditions mentioned as (i), (ii) and (iii) which shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as claimed by the appellant as stated that he is an importer cannot be accepted especially, when the Hon'ble Supreme Court has categorically held that such a situation will arise to many when they abandon the goods. 7. Similarly, in the judgment cited by the respondent, which is also extracted in the judgment of the learned Single Judge viz., 2003 (155) E.L.T.423, Om Prakash Bhatia Vs. Commissioner of Customs, Delhi, when import is permissible on satisfaction of certain conditions, the violation of the same will make the goods imported as prohibited goods within the meaning of Section 2(33) of the Act, which reads as follows:- "2(33) ' Prohibited goods' means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with" After hearing both sides and after considering the statutory provisions, we do not think that appellant, as a matter of right, can claim release of the goods on payment of redemption fine and duty. Even though gol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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