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TMI Blog2014 (12) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... nd found to be containing Tin Sheets and not Tin Free Sheets. 2.2. Based on further information, the Bill of Lading No.SENURTMD84166103, dated 2.6.2002 was taken up for investigation. The further investigation made by the Directorate of Revenue Intelligence revealed that the importer has also imported further consignments of Tin Sheets under the guise of Tin Free Sheets in five containers and they are lying at the port for clearance. For this five containers, no bill of entry was filed. The Bill of Lading and other documents revealed that the goods are Tin Free Sheets and the total weight was declared as 117.846 MTs. These goods were identified and detained. The goods imported by the five containers are the subject matter of the present proceedings. 2.3. A statement was recorded from Prem Gupta, partner of the importing firm, on 28.6.2002 and he, inter alia, stated as follows: " Shri Prem Gupta inter alia stated that the consignment was imported from M/s.Nicomet, Belgium; that he had requested the overseas supplier to declare the goods as TFS sheets and had done this specifically to evade customs duty; that the Customs floor price for tin sheets of width above 600 mm is US$ 465 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the importer based on the details forwarded by their overseas agent and the relevant bills of lading were (i) SENURTMD84166002 (Container Nos.CATU 2884858, FSCU 3081957, TRLU 3610112; (ii) SENURTMD84166103 (Container Nos.GESU 2020382, INBU 3140330). He further stated that two sets of bills of lading were prepared by their company based on the information from their overseas agent in their computer system and admitted that the description and weight were changed in the second set of bill of lading. However, he stated that he is not aware of the corrections and he did not get prior concurrence from the overseas agent for change of description and weight in the bills of lading. 2.6. The subject consignment was examined on 10.7.2002 in the presence of independent witnesses, representative of the Steamer Agent and Viking CGS, Shri Prem Gupta of the importing firm and Metallurgical Experts from National Metallurgical Laboratory. After drawal of the samples by the Metallurgical Experts, the goods were seized. The National Metallurgical Laboratory, vide report dated 9.8.2002, certified that the goods were tin sheets of width above 600mm. 2.7. The department noticing that as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed bill of entry and taking note of the misdeclaration, the goods were seized and action has been taken separately for confiscation and imposition of penalty. Insofar as the present five consignments are concerned, the finding of the Commissioner is that as the earlier consignment was taken up for investigation by the Directorate of Revenue Intelligence and seized, the importer fearing similar seizure of the goods with consequential proceedings has not filed bill of entry and has abandoned the goods. The specific finding of the Commissioner is that the importer has not retracted the statement. Therefore, it is a clear case of admission of improper import with intention to evade payment of duty. 2.12. In paragraph (15) of the order, the Commissioner of Customs observed that the Directorate of Revenue Intelligence has seized two bills of lading, namely, (i) first set filed with the Customs based on the corrected one received by the importer; and (ii) second set of bill of lading, wherein description has been corrected as Electrolytic Tin Sheets defective/secondary waste as against the initial declaration of Tin Free Sheets defective/secondary sheets. The weight has also been correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, as the same was detected by DRI, they had no other option, but to abandon the goods for fear of heavy fine and penalty. As such I hold them responsible for the import of the consignment. I find that the importers had abandoned the goods only after the detection of the goods by DRI. Although they have abandoned the goods, in view of the production of two sets of bills of lading and other documents for a single consignment and the acceptance of the importers that the same had been done under their instruction to evade customs duty and later on to avoid fine and penalty, I find that the importers are responsible for this import. The importers have also held the subject consignment liable for confiscation. Coming to case law of Commissioner of Customs, ICD, TKD, New Delhi v. Sewa Ram Brothers, I find that in the case under reference they had imported servicable rags and abandoned the goods and intimated the same on 17.11.2000. However, after this a show cause notice was issued to the importers proposing confiscation under Sec.111(d) and penalty under Sec.112(a) of the Customs Act, 1962. The Adjudicating Authority after ordering absolute confiscation of the goods did not impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 23(2) and 112 of the Customs Act. 2.16. Aggrieved by the said order, the Department has filed this appeal on the following substantial question of law: "Whether the act of the importer in abandoning the goods landed at the harbour for clearance would not attract penalty on such importer as provided for under Sections 23(2) and 112 of the Customs Act? 3. We have heard Mr.P.Mahaadevan, learned Standing Counsel appearing for the appellant and Mr.K.Jayachandran, learned counsel appearing for the first respondent. 4. Before adverting to the merits of the case, it would be apposite to refer to Sections 23, 111(d) and 112 of the Customs Act, which read as under: "Section 23. Remission of duty on lost, destroyed or abandoned goods. (1) Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost otherwise than as a result of pilferage or destroyed, at any time before clearance for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall remit the duty on such goods. (2) The owner of any impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng both under clauses (i)and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest. 5. Here is a case where the importer attempts to import goods one after the other and the investigation revealed that there is a clear intent to evade payment of duty. The importer realizing that he would suffer not only the consequences of confiscation, but penalty, has chosen not to file bill of entry for subsequent consignments and has proceeded to abandon the goods. From a reading of the statement recorded at the time of investigation, it is evident that the import was made with an intention to evade duty by clearing Tin Sheets of higher value by declaring them as Tin Free Sheets of lower value. There is also a clear admission that differential price was paid through other than banking channels. There is a clear admission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this argument. What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to 'any prohibition imposed by any law for the time being in force in this country' is liable to be confiscated. 'Any prohibition' referred to in that section applies to every type of 'prohibition'. That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression 'any prohibition' in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions 'prohibiting', 'restricting' or 'otherwise controlling', we cannot cut down the amplitude of the word 'any prohibition' in Section 111(d) of the Act. 'Any prohibition' means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From Item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement recorded by the Customs authority, he has accepted that he is the owner of the goods and the reason for misdeclaration has also been stated. The statement is not retracted. The complicity of the importer in the improper import is, therefore, evident from the narration of facts as above. 12. Section 112 of the Act stands clearly attracted to the case of improper importation of goods by any person. The key words of Section 112(a) of the Act are that in relation to any goods, if any person does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111 of the Act, he shall be liable to pay penalty. In this case, the importer did not make a proper declaration in respect of the goods with an intent to evade payment of customs duty and, therefore, the consequence of penalty will flow automatically. In our firm view, the Commissioner was justified in imposing penalty, though we find it is meager in the facts of the present case. We, therefore, answer the question of law in favour of the Revenue and against the importer. 13. We are not inclined to refer to the various decisions of the Tribunal relied on by the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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