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TMI Blog1984 (8) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... red to have cancelled the remittance particulars against the licence issued in the name of M/s. Literate Wear and transferred the remittances to their own licence bearing No. P/W/2983148 dated 15-12-1982. This cancellation and substitution of the exchange remittance entry in the exchange control copy of the licence in the Bank was done on 16-11-1983. It appears the vessel Dhaulgiri by which the goods in question were imported entered Bombay Port on 14-11-1983. Since the goods to the extent of the value of ₹ 1,00,879/-belonged to M/s. Literate Wear, Bombay on the date of import, a show cause notice was issued to the respondents stating that their licence No. P/W/298 dated 15-12-82 was not valid for the goods imported and the value of the goods imported exceeded the value of the valid licence produced by them to the tune of ₹ 1,00,879/-. The respondents herein were called upon to explain why the goods of the above value should not be confiscated under the provisions of Section 111 (d) of the Customs Act, read with Section 3(2) of the Imports and Exports Control Order, 1955 and why action should not be taken against them under Section 112 of the Customs Act, 1962. In rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able for confiscation. The Board, however, felt that the imposition of redemption fine by the Collector worked out to approximately 10% of the c.i.f. value of the goods, which in the opinion of the Board, did not wipe out entire margin of profit estimated to be more than 100% of the c.i.f. value of the goods. The Board also observed that even though the importers had effected import of Denim 100% cotton, after getting the licence endorsed fraudulently to cover the goods, an offence which ordinarily should have been attracted severe perial action, no personal penalty was imposed on the importers. The Board, therefore, in exercise of its powers under Section 129-D(1) of the Customs Act, 1962 directed the Collector of Customs, Bombay to make an application against his order to the Customs, Excise Gold (Control) Appellate Tribunal for enhancement of quantum of redemption fine and for imposition of personal penalty on the respondents herein. This order of the Board is dated 26th June, 1984. The Collector of Customs, Bombay on 31-7-1984 filed an appeal and instead of seeking the reliefs which the Board directed him to seek he sought the following reliefs : (1) the Order bearing No. 1/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to produce their own licence by reason of withdrawal of the facility by M/s. Literate Wear, Bombay. In the circumstances if the Collector had imposed a fine of ₹ 10,000/- in lieu of confiscation, it cannot be said that the order passed by the Collector is illegal or improper. He also submitted that the facts and circumstances of the case did not call for imposition of any penalty on the respondents herein. 8. I have carefully considered the submissions made on both sides. I have also perused records of the case. 9. This appeal involves certain interesting question of law. They may be formulated as under :- (i) Whether the Collector who was directed to make an application under Section 129-D(1) by the Central Board of Excise Customs, could seek reliefs other than those specified by the Board. (ii) Whether a personal penalty can be imposed on a letter of authority holder. (iii) Whether the Board for the purposes of exercising its powers conferred under Section 129-D(1) take into consideration the facts and circumstances which were not existing at the time of adjudication, but were subsequently discovered and could on the subsequently discovered facts seek mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of powers conferred upon it under Section 29-D(1) of the Customs Act, 1962 directs the Collector of Customs, Bombay to make an application against the said order passed by him to the Customs, Excise, Gold (Control) Appellate Tribunal under Section 129-D(4) of the said Act for enhancement of quantum of redemption fine which should be imposed to the extent of actual margin of profit and also for imposition of personal penalty commensurate with the gravity of the offence under Section 112 of the said Act and for suitably modifying the said orders of the Collector. The two points specified by the Board in its order are : (1) that there should be enhancement of quantum of redemption fine and (2) imposition of personal penalty. But the reliefs claimed by the Collector in his application dated 31-7-84 before the Appellate Tribunal are altogether different. The Collector desired that the order passed by him as an adjudicating authority should be set aside and the matter should be remanded for de novo examination by the Collector. Granting of the first relief would have the effect of setting aside the order of confiscation passed by the Collector, which order, according to the Board s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te finding of the learned Collector was that the cancellation and substitution of the exchange remittance entry in the exchange control copy of the licence in the Bank was done on 16-11-83, after the import of the consignments. His further finding was that at the relevant time of the import, a part of the consignment to the extent of ₹ 1,00,879/- belong to M/s. Literate Wear, Bombay. His further finding was that the substitution in the exchange control copy was done subsequent to the import of the goods. The Collector also held that the goods valued at ₹ 1,00,879/- were the property of M/s. Literate Wear upto the time of clearance through customs. The Collector further held that the import was against the licence of M/s. Literate Wear and the importers were only agents whose role is limited to that of placing orders, opening L/Cs. and clearance through Customs. In so far as ownership is concerned, it vested in the licence holder only and further M/s. Liwe International cannot change their role from that of agents to that of owner. The conclusion of the Collector, however, was that the goods to the extent of ₹ 1,00,879/- have been imported without co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot order confiscation nor could he impose a fine in lieu of confiscation nor could he impose any personal penalty. Therefore, the reliefs claimed by the Board for enhancement of quantum of fine and imposition of personal penalty cannot be granted. 15. The power conferred under Section 129-D(1) is circumscribed. Board s examination of the order passed hy tlic Collector of Customs as an adjudicating authority should he for the purpose of satisfying itself as to the legality and propriety of the decision or order passed by the Collector. The Board did not state in its order that the order passed by the Collector was not legal. Therefore, it is not necessary for the to examine whether the order passed hy the Collector was legal or not. 16. The Board seems to think that the order passed by the Collector is not proper. From the order of the Board and the statement made in the appeal memo and the arguments addressed by Shri Jain, it can be gathered that the Board came to the conclusion that the order passed by the Collector was not proper because the subsequent investigation or enquiry disclosed that the respondents herein have obtained a fraudulent endorsement on the licence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not given any other reason to modify the amount of fine imposed by the Collector. It cannot be said that the fine imposed in this case is either nominal or manifestly inadequate. The Collector has recorded the reasons as to why he has taken a lenient view. The discretion exercised by the Collector in the facts and circumstances of the case cannot be considered as arbitrary, capricious or even improper. 20. In any case, the facts and circumstances established did not call for any interference as to the quantum of fine imposed. 21. Personal penalty could be imposed only under Section 112 of the Customs Act. The Board did not specify in its order which act or omission of the respondents herein rendered the imported goods liable for confiscation under Section 111. If the import is considered as valid as has been held by the Collector, the question of imposition of personal penalty on the respondents does not arise. Even otherwise, the respondents herein were only letters of authority holders. Till the import they acted in that capacity alone. As a letter of authority holder they could place orders, open L/C and clear the goods for and on behalf of the owners. For this limited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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