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TMI Blog2019 (7) TMI 1657X X X X Extracts X X X X X X X X Extracts X X X X ..... on fine and penalty on Reexport of goods is not imposable under Sections 125 and 112 of Customs Act, 1962 when supplier confessed mistake and agreed to bear expenses for export due to wrong shipment by foreign supplier and no mala fide on part of respondent as has been held in the case of REGAL IMPEX VERSUS C.C., ICD, TKD, NEW DELHI [ 2015 (10) TMI 2259 - CESTAT NEW DELHI] ). The Tribunal in this case has held that when goods found other than what was ordered and on persuasion of the importers the overseas supplier admitted that goods are wrongly shipped, the charges of mis-declaration on the importers is not sustainable - Hence, applying the ratio of the above judgement when the respondent is not claiming the goods due to wrong supply is not liable to penalty under any circumstance and accordingly, the order imposing penalty on the respondent is liable to be set aside. The departmental appeal has been preferred on the grounds that goods were not confiscated under Section 111(d) and 111(f) and 119 of Customs Act, 1962. Also, against the Order-in-Original, the respondent had also preferred an appeal, which was allowed vide Order-in-Appeal No.Kol/Cus/Port/AA/733/2017 dated 03.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir workers made a mistake in loading 200 pieces Gensets along with Kerosene Water Pumps. In view of the dispute in wrong supply of the goods, no Bill of Entry was filed. Since, for importation of Generators, Pollution Control Certificate is required, which was not in their possession. Finding no other alternative, the importer/respondent disowned the goods and vide its letter dated 18.01.2016, intimated the overseas supplier that they are not interested to clear the goods which is not in conformity to the order placed to their agent. The overseas supplier resold the goods to M/s.Pan Asia Ventures, Nagaland and intimated the same to the importer/respondent vide their letter dated 09.02.2016. The importer/respondent gave their No Objection vide letter dated 08.04.2016 to get the import documents transferred in the name of M/s.Pan Asia Ventures, Nagaland. 7. The steamer Agent approached the department for necessary amendment of the Bill of Lading (BL) and Import General Manifest (IGM) which was earlier in the name of the importer/respondent. The importer/respondent received a summon issued under section 108 of the Customs Act, 1962 to appear before Special Investigation Branch (SI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Generator under section 111(d) and 111(f) of the Customs act, 1962 for having been imported without a valid Certificate of type approval as prescribed under GSR 535 E dated 07.08.2013 and for being not declared in BL and IGM. (ii) Whether the adjudicating authority has erred not to confiscate the goods-240 Units of Kerosene Water Pump Sets contained in container which have been used to conceal the smuggled goods under section 119 of the Customs Act, 1962. (iii) Whether the adjudicating authority has erred not to impose penalty on Shri Hakim Bhemat Proprietor of M/s.Al-Burhan International under section 112(a) of the Customs Act, 1962. (iv) Whether the adjudicating authority has erred not to confiscate the goods-200 Units of Kerosene Water Pump Sets contained in container which have been used to conceal the smuggled goods under section 114AA of the Customs Act, 1962 for use of false and incorrect material during importation which rendered the impugned goods imported. (v) Whether the adjudicating authority has erred to pass the order to allow amendment in IGM which Is not under the purview of the show cause notice (SCN). (vi) Whether the adjudicating authority has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the department should allow amendment of IGM in favour of M/s.Pan Asia Ventures. It is further submitted that SIB has issued a show cause notice only on suspicion and made out a case of mis-declaration while this appears to be a simple case of amendment of IGM. 17. I find that the learned Commissioner(Appeals) vide Order-in- Appeal No.KOL/CUS(PORT)/AA/733/2017 dated 03.07.2017 has dealt the entire issue in detail and allowed the appeal filed by M/s.Al-Burhan International (the appellant before him). 18. It is my considered view that redemption fine and penalty on Reexport of goods is not imposable under Sections 125 and 112 of Customs Act, 1962 when supplier confessed mistake and agreed to bear expenses for export due to wrong shipment by foreign supplier and no mala fide on part of respondent as has been held in the case of Regal Impex Vs. C.C., ICD, TKD, New Delhi, as reported in 2016 (332) E.L.T. 835 (Tri.-Del.). The Tribunal in this case has held that when goods found other than what was ordered and on persuasion of the importers the overseas supplier admitted that goods are wrongly shipped, the charges of mis-declaration on the importers is not sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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