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TMI Blog2010 (9) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... Held that: - We are not impressed with the alternative plea for re-export. This is because the goods covered by the live Bill of Entry are tainted goods, the description and value of which were wilfully misdeclared by the importer. These are goods covered by Section 111(m) of the Customs Act. It is settled law that any goods imported in breach of any prohibition or restriction would be liable to confiscation and the importer liable to penalty. Appeal disposed off - matter on remand to decided certain issues like past imports, imposition of penalty u/s 112 of CA. - C/108-109/2006 - Final Order Nos. 1246-1247/2010 - Dated:- 24-9-2010 - Shri P.G. Chacko, Member (J) and P. Karthikeyan, Member (T) Shri B.V. Kumar, Advocate, for the Appellant. Shri Niranjan Babu, SDR, for the Respondent. ORDER These appeals are directed against the Commissioner s order, the operative part whereof is reproduced below :- (a) I confiscate Paper Phenolic Copper Clad Laminates valued at ₹ 20,97,000/- imported vide Bill of Entry No. 726 dated 14-11-2000 in terms of Section 111(m) of the Customs Act, 1962 for contravention of the provisions of Section 46 of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices Ltd. (Steamer Agent). A statement was also recorded from Mr. Nitin M. Shah of M/s. Binita Trading Co., Mumbai. The investigators also recorded statements of six buyers of goods imported in the past by M/s. R.R. Enterprises. The investigating officers also retrieved certain documents relating to the imports in question through the two steamer agents viz. M/s. Sanco Trans. Ltd. and M/s. Kamal Shipping Services Ltd. From the investigative results, it appeared that M/s. R.R. Enterprises had imported two consignments of identical goods in the past; one in May, 2000 and the other in October, 1999. It appeared that those consignments were cleared on the basis of the declarations made by the importer. Those consignments were covered by Bill of Entry No. 303 dated 12-5-2000 and Bill of Entry No. 589 dated 7-10-1999 respectively. On the basis of the documents retrieved by the investigating officers through steamer agents, it was found that both the description and value of the goods had been misdeclared in the respective bills of entry. The same result was found by the investigators in relation to the live consignment covered by Bill of Entry No. 726 dated 14-11-2000 on the basis of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the relevant purchase order (P/O No. SIN TA-00-001. It shows Busan (Korea) as the port of loading and ICD, Hyderabad as the final destination. As per this document, the exporter is M/s. Doosan Corporation Electro-Materials BG and the importer is M/s. R.R. Enterprises, Hyderabad. As against the value of the goods indicated in the above commercial invoice, the value declared by the importer in the above Bill of Entry was USD 11,712 only, which was declared for a quantity of 14,640 kgs. It is nobody s case that 6000 sheets of Paper Phenolic Copper Clad Laminates would not weigh 14,640 kgs. On a scrutiny of all the said documents, it appears to us that a case stands made out by the Revenue against the importer. Apparently, the importer suppressed the genuine commercial invoice issued by the manufacturer (M/s. Doosan Corporation Electro-Materials BG) and presented before the Customs authorities an invoice authored by the Singapore trader viz. M/s. Sin Ta Impex Pvt. Ltd. (SIPL). Apparently, the packing list and other documents presented before the Customs authorities were also the handiwork of the Singapore trader. Apart from this, the Department has also legitimately relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Counsel has also contextually submitted that the case of C.C., Kolkata v. Grand Prime Ltd. [2003 (155) E.L.T. 417 (S.C.)] referred to in the impugned order is clearly distinguishable on facts. 4. Ld. Counsel has also relied on certain decisions in support of his submission that none of the documents received by the Customs authorities through steamer agents can be admitted as evidence for want of proper authentication as required under Section 139 of the Customs Act/Section 78(6) of the Evidence Act. Some of these are C.C., Bombay v. East Punjab Traders [1997 (89) E.L.T. 11 (S.C.)] and V.K. Impex v. C.C. (Port), Kolkata [2002 (141) E.L.T. 564 (Tri.)] (Civil appeal filed against this decision was dismissed by the Apex Court vide 2002 (158) E.L.T. A184 (S.C.). The gist of submissions made by the Counsel with reference to the facts and evidence of the case pertaining to the live consignment is as follows : - (i) No samples were drawn to prove that the goods were not C grade/rejects of Paper Phenolic Copper Clad Laminates; (ii) No expert evidence was gathered to ascertain the quality or value of the goods; (iii) The declaration made in the Bill of Entry was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd certificate of origin supplied by SIPL (Singapore trader), the subterfuge becomes evident from a document successfully retrieved by the Revenue from the Korean manufacturer through steamer agent. This document is commercial invoice dated 28-9-2000 available at page 36 of paper book Volume - II. We have already given a profile of this document in an earlier part of this order. At this juncture, our focus is on the reference, contained in this invoice, of purchase order No. SIN TA-00-001. The appellants have not disowned this purchase order, and it should also be contextually pointed out that they have not shown us this document though we wanted to see it. Other particulars like destination mentioned in this invoice of the manufacturer are all tallying with the particulars declared by the importer under Rule 10 of the Customs Valuation Rules vide declaration dated 9-11-2000 in ANNEXURE-I. There are only two discrepancies between the invoice and the declaration and they are about the description of the goods and its value. Our attention is also caught by an information given at Sl. No. 23 of the declaration, whereat the importer entered NA (Not Applicable) against Previous impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the importer. The commercial invoice dated 28-9-2000 ibid refers to this purchase order. This fact coupled with the statements of the importer would clearly indicate that the purchase order was placed on the Korean manufacturer through SIPL. In other words, SIPL and the indenting agent were acting virtually as agents of the importer in the matter of ordering for purchase of the goods from the Korean manufacturer. Facts which were known to the agents should be held to be known to the principal (importer) as well. On this basic tenet, we think, it can be held that the commercial invoice dated 28-9-2000 of Doosan Corporation Electro-Materials BG (South Korea) was very much within the knowledge of R.R. Enterprises. This document, however, was not presented before the Indian Customs authorities. What was presented before them was that an invoice made by SIPL (Singapore) indicating the goods to be C Grade/rejects undervalued. Obviously, the supporting documents viz. packing list and certificate of origin were also supplied by SIPL. R.R. Enterprises readily presented these documents before the Customs authorities with obvious intent to clear the goods on payment of lesser amount of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Prime Ltd. (supra), the Hon ble Supreme Court held, in respect of goods which were found to be liable to confiscation under Section 111(d) and (o) of the Act, that the plea for permission to re-export the goods was not liable to be considered. The view taken by their lordships, as we understand, is that tainted goods cannot be allowed to be re-exported and should be dealt with, within the country, in accordance with law. It appears that the lower authority aptly referred to the Supreme Court s ruling in the context of rejecting the importer s plea for re-export. As rightly submitted by the ld. SDR, the cases of Sampat Raj Dugar and Leela Scottish Lace Ltd. are clearly distinguishable on facts from that of Grand Prime Ltd. We repeat that the facts of the instant case are similar to those of Grand Prime Ltd. 11. In the result, the decision of the Commissioner in relation the live Bill of Entry is sustained except in respect of redemption fine and penalty. We have also reduced the quantum of fine to ₹ 2 lakhs. The quantum of penalty to be imposed on the importer under Section 114A has got to be determined by the Commissioner in accordance with law after giving the party a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore it should be held that the goods covered by the said Bill of Entry were of prime quality and that its value had been suppressed with intent to evade payment of appropriate amount of customs duty. The said application was, apparently, submitted for permission to transship the goods from Madras Port to ICD Hyderabad. Though this transshipment application can be linked to the relevant Bill of Entry through the container number mentioned in the two documents, this is not sufficient to support the finding recorded by the Commissioner that the importer misdeclared the description and value of the goods covered by the Bill of Entry. The particulars mentioned in this document were authored by the steamer agent and not by the manufacturer/trader, nor by the importer. Therefore, in respect of the goods covered by Bill of Entry dated 7-10-1999 also, we are constrained to reach the conclusion that the Revenue has not made out a case for demanding differential duty from the importer by invoking the extended period of limitation on the ground of suppression of facts by the importer. 14. In the result, in so far as the past imports are concerned, the appeal of the importer has to be allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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