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TMI Blog2013 (9) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... was mistake on the part of the supplier in sending the wrong goods which would clearly show that there was no intention on the part of the appellants. Not only the suppliers have admitted their mistake, but also they compensated the appellants for discrepancies - Nothing incriminating evidence was found against the appellants to implicate their involvement in importing the goods other than declared - Contention of the Department that supplier has been obliging in sending Brass Scrap in the guise of Brass Dross to various importers cannot be taken as decisive factor to penalise the appellants in the absence of their involvement or connivance with Exporters in importing such wrong goods. Further, appellants have given sufficient evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 58 of the Customs Act, 1962. The respondents have imported 208 rolls of Metallized Film, 35 Pcs of printed barriers and 7 Pcs of finished bags (free sample) vide B.E. No.815 both dated 14.5.08 at ICD, Dashrath seeking duty free clearance under Notification No.52/2003-Cus dated 31.3.03 on the strength of the procurement Certificate No.2/07-08 dated 7.5.08 issued by the JRO. The said imported goods have been re-warehoused on 19.5.08 at the Private Bonded Warehouse of the respondents and on physical verification of the said goods by the JRO, it was noticed that 12 rolls of Metallized Film valued at Rs.4,872/-, 35 Pcs of Printed Barriers valued at Rs.2645/-and 2 Pcs of finished bags (free sample) vide B.E. No.814 dated 7.5.08 were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d show cause notice was decided vide impugned order dated 30.1.10 confirmed all the charges alleged in the show cause notice and confiscated the goods amounting to Rs.2,67,132/- under section 111(o) ibid and imposed fine of Rs.66,783/-under Section 125(1) ibid in lieu of confiscation. 3. Aggrieved by such an order, the respondent-assessee preferred an appeal before the first appellate authority who after considering the evidence on record allowed the appeal filed by the assessee. 4. Ld. Assistant Commissioner (A.R.), appearing on behalf of the Revenue would submit that the bills of entries which were assessed could not be amended as provisions of Section 149 do not allow for modification after the goods are deposited in the warehouse. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty on the short receipt of the goods amounting to Rs.21000 Pcs of Galvanized Wire (Core Pipe) in bill of entry No.913 dated 28.5.03 it needs to be decided whether the goods which was received short in bill of entry No.814 were liable for confiscation or not. 8. On perusal of the records, I find that the first appellate authority while allowing the appeal filed by the respondent on these two issues has recorded the following points: 6.2. With regard to B.E. No.913 dated 28.5.08, it is observed from the impugned order dated 31.1.10 at para no.10.6.1 as informed by the Assistant Commissione, Customs, ICD, Dashartha vide his letter No. B/E 913/2008 dated 30.1.10. On perusal of above said letter dated 30.1.10 of the ,Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before import - Goods landing short - Full duty could be demanded only on import of goods - Section 28 of Customs Act,1962." Further, in the present the Appellants have given sufficient evidences to show that the overseas supplier have loaded short quantity which also admitted by the overseas supplier. On basis of the same the ICD, Dasharath have finally assessed the B.E. on 30.1.10 on the quantity actual re-warehoused, which are reported by the JRO. There was no intention on the part of the appellants the suppliers have admitted their mistake and issued the credit note. No incriminating evidence was found against the appellants to implicate their involvement in importing the short quantity. Therefore, appellants /cannot be penalised the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their involvement in importing the goods other than declared. The contention of the Department that supplier has been obliging in sending Brass Scrap in the guise of Brass Dross to various importers cannot be taken as decisive factor to penalise the appellants in the absence of their involvement or connivance with Exporters in importing such wrong goods. In the facts and circumstances of the case we hold that it is not necessary to order confiscation and consequently fine and penalty. 7. Further, in the present the appellants have given sufficient evidences to show that the overseas supplier have loaded short quantity which also admitted by the overseas supplier. On basis of the same the quantity actual re-warehoused, which are reported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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