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TMI Blog2013 (11) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In terms of the licence and Import Export Pass Book, the appellant was authorized to import goods of description synthetic waste/soft quality with pre-dominance of acrylic staple fibre with wide variation in denier and length, containing both drawn and un-drawn fibres. 4. Directorate of Revenue Intelligence investigated into the above import based on a specific information that the consignment contained prime acrylic staple fibre but not the goods allowed for import. Initial examination of container no. SSXU-232477/0 made on 22.02.90 revealed that all the 24 bales packed in the container were found with labels of manufacturer which showed that the goods were Acrylic Staple Fibre of denier 2.5 and 3 (one bale having only one denier) and of fibre length of 110 mm. The label also indicated the serial number, gross and net weight of the bale giving description of the goods as: ACRYLIC STAPLE FIBRE, COMMERCIAL QUALITY, BGIGHT S.W.M. 3.0 DTEX, V 110 MM BRIGHT, BALE NO.42, GROSS WEIGHT 299.1 Kgs. 5. When the goods on physical examination were found to be misdeclared, the consignments were seized and samples were drawn following due process of law and provisional release of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f instructions received from booking freight forwarding company, decalred that freight was payable at destination and that cargo description was Acrylic staple fibre commercial quality bright. (ii) Cargo shipped on M.V. Ville Le Neptune 9514 Ex BCN, Vessel's ports of calls after Barcelona were Le Harve/ Rottoerdam/ Felistow/ Antwerp I Marceille/Naples/Jeddah/Mina Qaboos where cargo was discharged. It then connected with relay vessel Villa De Dubai 2110 from Mina Qaboos to Bombay. (iii) The Spanish freight forwarding company withdrew the containers themselves from empty stock of CMA in Barcelona, presented them to Shippers premises and returned them full to Quay Barcelona in readiness for shipment. No bond was issued, as is the local common practice. Exporters loaded the containers themselves. (iv) Freight up to Bombay was (as mentioned in point (i) above) initially declared by Spanish forwarder as 'collect'. However, U.K. based shipper chose to pay freight to CMA, U.K. Agents Bradford U.K., M/s Liner Shipping Agencies. It was Liner Shipping, who amended OB/Ls in U.K. to read Freight Prepaid and also the Cargo description to read 'Synthetic waste/soft quality with pre-dominance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... World Wide Cargo and telex dated 27.02.90 sent by M/s World Wide Cargo to M/s CMA as well as the mode of packing and specifications given on the manufacturer's label, found to be pasted on the bales of material imported vide B/E no. 110713 dt. 19.01.90, it appeared that the goods were acrylic fibre of specific denier, staple length, Bright and commercial quality, against the declared description of 'synthetic waste/soft quality with pre-dominance of Acrylic staple fibre with wide variation in denier and length, containing both drawn and un drawn fibre'. It also appeared that the goods did not merit duty free clearance under notification no.117/88 against Import-Export Licence No.PF/0002325 DT.29.09.89. 11. In course of investigations, various CIF prices of Imported Acrylic fibre and quotation for Acrylic Fibre, showing price in Korea and Taiwan during August to November, 1989 were obtained. The lowest price noticed for acrylic fibre during the relevant period was Y 215 per kg. (Exchange rate Rs.I00 = Y 847.50). Calculated at this price, the CIF value of 96085 kgs came to Rs.24,36,716/- (Rupees twenty four lakhs thirty six thousand seven hundred sixteen only). 12. In view of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisionally at the time of import. (iv) Penalty of Rs. 15,00,000/- (Rupees Fifteen Lakhs) was imposed on M/s Sanjeev Woollen Mills and penalty of Rs. 1,00,000/- (Rupees One Lakh) was levied each on each the partners of M/s Sanjeev Woollen Mills namely S/Sh. S.P. Goyal, Sanjeev Goyal and R.K. Goyal under section 112(a) of the Customs Act, 1962. (v) Duty, fine and penalty demanded in terms of adjudication was ordered to be recovered enforcing the Bank Guarantee and the Bond executed by the importer appellant. 14. Ld. Counsel for the appellant submitted that staple fibre is defined by Chapter Note 55 of the HSN Classification; the goods imported were not the virgin acrylic staple fibre but were synthetic waste/ soft quality of the prescribed denier and entitled to be imported duty free under Notification No.117/88. Forty-eight samples were sent for testing and that created fiction as to virgin acrylic staple fibre. Nothing came out in favour of Revenue in cross-examination of CRCL experts and memory deficiency of the expert caused prejudice to the appellant. Merits of the appellant was appreciated by the Tribunal while remanding the matter of the appellant in first round of liti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact of questionable modus operandi of the appellant not being recorded, the present case does not fall within the four of that decision. Therefore, the appeals should be dismissed. 18. Heard both sides and perused the records. FINDING AND CONCLUSION OF TRIBUNAL 19. From the uncontroverted evidence of shipment of virgin acrylic staple fibre by exporter and subsequent manipulation made to the documents in transit at the behest of the importer, it is established that the appellant importer mis-declared the imported goods in the bill of entry as waste to get the duty free benefit by the notification aforesaid. That is corroborated from the test reports of CRCL New Delhi & IPCL Baroda. Examination of the goods stuffed in container no. SXSU 232477/0 revealed that all the 24 bales packed in the container were with manufacturer's labels indicating that the goods were 'acrylic staple fibre' commercial quality of denier of 2.5 and 3 and fibre length of 110 mm. 20. The contention that acrylic staple fibre were of 'commercial quality' which was in consonance with the description of their pass-book did not merit consideration since the goods imported were predominantly virgin staple f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by M/s World Wide Cargo to M/s CMA. Had there been no malafide, entire manipulation of transit documents would not have occurred. All that was done was at the behest of the appellant. Test report of M/s IPCL, Baroda communicated vide letter dt. 22.06.90 and report of CRCL, New Delhi dated 26.02.98 proved the characteristics of samples tested was more like virgin acrylic fibre than waste products and 44 samples under reference were not waste. 23. Suppression of a material fact would also amount to a fraud on the court [(see Gowrishankar v. Joshi Amha Shankar Family Trust, (1996) 3 SCC 310 and S.P. Chengalvaraya Naidu's case (AIR 1994 SC 853)]. Fraud unravels everything and fraud vitiates all transactions known to the law of however high a degree of solemnity. When fraud is established that unravels all. [Ref: UOI v. Jain Shudh Vanaspati Ltd. - 1996 (86) E.L.T. 460 (S.C.) and in Delhi Development Authority v. Skipper Construction Company (P) Ltd. - AIR 1996 SC 2005]. Any undue gain made at the cost of Revenue is to be restored back to the treasury since fraud committed against Revenue voids all judicial acts, ecclesiastical or temporal. So also no Court in this country can allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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