9911796707
TMI Blog2023 (5) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... By the failure of the confiscation upheld in the impugned order, the consequent penalty under section 112 of Customs Act, 1962 cannot be sustained. Moreover, the findings of the original authority are replete with observations about the mistake that occurred as well as the role of the consol intermediary for not reflecting the contents of the consignment despite having issued house airway bill (HAWB) in acknowledgement of having assumed custodianship of the package and its contents. The fastening of wrongdoing on the appellant, therefore, does not sustain. It has ever been the claim of the appellant that the consignment in its entirety are unsold returns from the two export shipments affected by them in accordance with notification no. 45/2017-Cus dated 30th June 2017. No attempt was made to establish the veracity of the claim even in relation to the contents declared in the bill of entry before effecting seizure of the consignment of its entire on 24th February 2020. However, the lower authorities have acknowledged the eligibility, subject to ascertain, of the declared goods to such exemption; the principle so espoused cannot be withheld from the entirety of the consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ching with, as well as in excess of, declaration in bill of entry - for breach in self-assessment and of section 46(4) of Customs Act, 1962 but also insinuated section 118 of Customs Act, 1962 that the adjudicating authority had not found to be applicable. He further intimated that their entitlement to the benefit of exemption from duties on import of the cut and polished diamonds in the second box had been inappropriately denied when, in the light of their explanations, their plea for amendment of bill of entry under section 149 of Customs Act, 1962, preferred before the original authority, could easily have resolved the matter fairly and equitably. 3. There is no dispute on the foundational facts. However, the dichotomy of the controversy stems from inference placed upon the situational context which, according to Learned Counsel, is nothing but procedural and the customs authorities have not placed sufficient premium on the absence of motive, arising from entitlement to dutyfree clearance, to indulge in any deliberate misdemeanour. The technical perspective of customs authorities, while not amounting to overreach, has glossed over the intrusive treatment accorded to cut an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is evident that, while the claim for exemption, though now restricted to one box of 311.03 carats, was not disallowed for one and was not allowed for the second box of 99.14 carats solely on the ground that the benefit could not be extended in the absence of claim for such in the bill of entry; impliedly, denial of exemption has been grounded on absence of declaration in bill of entry and concurrent claim for the benefit. There is, thus, no categorical finding of ineligibility for the exemption, accorded to exported goods returned subsequently , by notification no. 45/2017-Cus dated 30th June 2017 and subject to satisfaction of the proper officer of the goods having been identified as previously exported. 5. Linked to this detriment is the confiscation of the entire consignment which, Learned Counsel claims, is legally inappropriate insofar the first box, matching the declaration and the bill of entry, is concerned for which reliance was placed on the decision of the Tribunal in Exports v. Commissioner of Central Excise, PPG, New Delhi [2018 (363) ELT (Tri-Del)] and in Microqual Techno Pvt Ltd v. Commissioner of Customs (Exports), Mumbai [2019 (370) ELT 1547 (Tri-Mumbai)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en of times past that continues to rule the Bharat Diamond Bourse at Mumbai in accordance with official instructions staying the hand, and passage, of time that that had brought about devolution of obligations on importers preferring declarations under section 46 and section 50 of Customs Act, 1962. The insistence on visiting the importer with the same rigour of responsibility and onus, as pervades the customs areas outside the Bourse, is nothing short of a scathing indictment of the manner in which the first check system is operated; surely, that cannot have been the intent of the lower authorities. As Learned Counsel has reiterated, time and again, the deterrence implicit in unalloyed first check precludes any inclination in that direction and, in any case, the absence of motive, concludible from entitlement to exemption, rules out indulgence in foolhardy undertaking speculated upon by the adjudicating and appellate authorities. It appears to us a reasonable premise that concealment does not entail two boxes of cut and polished diamonds matching in value with the first of the house airway bill and their presentation in such form for first check appraisal by customs auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof, the cited decisions would not legitimise the overreach undertaken by the first appellate authority. Therefore, the recourse to section 111(i) of Customs Act, 1962 to order confiscation of the imported goods is not tenable. 9. By the failure of the confiscation upheld in the impugned order, the consequent penalty under section 112 of Customs Act, 1962 cannot be sustained. Moreover, the findings of the original authority are replete with observations about the mistake that occurred as well as the role of the consol intermediary for not reflecting the contents of the consignment despite having issued house airway bill (HAWB) in acknowledgement of having assumed custodianship of the package and its contents. The fastening of wrongdoing on the appellant, therefore, does not sustain. 10. The lower authorities have distinguished between the contents of the two boxes insofar as assessment to duty is concerned. That distinction may have had some validity had the procedure envisaged in section 47 of Customs Act, 1962 for other cargo been the norm; our findings supra have established the contrary and first check , which includes tabulation of the contents of an import cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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