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TMI Blog2023 (10) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... ty as a condition precedent for re-export the goods is without any basis and the same is required to be modified. Therefore, the paragraph No. 17.4 of the impugned order would now read as that the petitioner is permitted to re-export the goods on payment of redemption fine only. The respondent authorities are directed to permit the petitioner to re-export the goods without insisting upon the payment of penalty imposed by the respondent authority in the order permitting re-export of goods on payment of redemption fine of Rs. 5,00,000/- only - Petition allowed in part. - HONOURABLE MR. JUSTICE BIREN VAISHNAV AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Appearance: For the Petitioner(s) No. 1 : Mr Gaurav S Mathur (5365) For the Petitioner(s) No. 1 : Mr Gervasis P Thomas (12334) For the Respondent(s) No. 1,2 : Notice Served By DS ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Gaurav S. Mathur for the petitioner. Learned advocate Mr. Priyank Lodha is permitted to file his appearance for the respondents. 2. Rule, returnable forthwith. Learned advocate Mr. Priyank Lodha waives service of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd (hereinafter referred to as the Seller ), a company doing business in Myanmar for purchase of 7740 Kgs (7.740 MT) of Betel nut / Areca nut for a price of US$ 3300 per Metric Ton (FOB) and 20.220 Kgs (20.220 MT) of Shikakai for a price of US$ 640 per MT. The said Purchase Order with all its terms and conditions was accepted by the Seller. 4.3. Accordingly, the petitioner and the Seller entered into a Sale Contract dated 19.08.2022 for the sale of 7.40 MT of Areca nut and 20.220 MT of Shikakai, in terms of the price agreed in the Purchase Order dated 10.8.2022. 4.4. On 07.09.2022, the Seller issued a Commercial Invoice for a total sum of US$ 38,482.80 in which an amount of US$ 12,940.80 was towards 20.220 MT of Shikakai and US$ 25,842.00 towards 7.740 MT of Areca nut. A partial payment of US$11000 was paid to them through regular banking channels. On the same date, the petitioner received a Packing List of Shikakai and Areca nut (hereinafter collectively referred to as the Cargo ), which clearly showed that the quantity packed was in terms of the Purchase Order dated 10.08.2022, Sales Contract dated 19.08.2022 and Commercial Invoice dated 07.09.2022. 4.5. It is the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also filed the documents for import on 16/11/2021 and for returning your cargo I have to observe all legal formalities and in the same it may some time. Please note that as of now I am also not in position to make the entire payment to you for the excess cargo. Therefore, I will find out the way to return your cargo of the rules of my country allow it. 4.8. It is the case of the petitioner that on the basis of a purported intelligence input that the petitioner has attempted to evade customs duty by mis-declaring the respective quantities of Shikakai and Areca nut, Special Investigation and Intelligence Branch ( SIIB , for short), Mundra Customs, at the Container Freight Station ( CFS , for short), Mundra intercepted the Cargo. The Customs Department on 26.11.2022 undertook examination of the container in which the Cargo was transported and prepared an Examination Report dated 26.11.2022. During the examination, it was observed that the quantity of Cargo varied with the declaration made in the bill of entry. Accordingly, against a declared quantity of 7740 Kgs. of areca nuts, 17,585 Kgs were found during examination and as against a declared quantity of 20,220 Kgs. of Shikak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the Bill of Entry. It is also the case of the petitioner that no knowledge or motive can be imputed to the petitioner for such variation and as a matter of fact, the seller has admitted its error. In this scenario, the petitioner sought permission to re-export the Cargo and not to issue a show-cause notice or grant personal hearing in the matter. However, the respondent No. 1 proceeded to pass the Order in Original holding the petitioner guilty of mis-declaration and passed the following order: 17. In view of the aforesaid discussions and findings, I pass the following order: ORDER 17.1 I order for confiscation of goods imported vide Bill of Entry No.3331409 dated 16.11.2022 having assessable value of Rs. 1,13,58,488/- (Rupees One Crore Thirteen Lakhs Fifty Eight Thousand Four Hundred Eighty Eight Only) under Section 111(d), 111(1), 111(m) and 119 of the Customs Act, 1962. However, I give an option to the importer to redeem the confiscated goods on payment of redemption fine of Rs. 5,00,000/- (Rupees Five Lakhs Only) under Section 125 of the Customs Act, 1962 for re-export purpose only. 17.2 I impose a penalty of Rs. 10,00,000/- (Rupees Ten Lakhs On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the respondent No. 1, the petitioner approached the respondent No. 2 vide representation dated 12.07.2023 pointing out that since it had made payment of the entire amount of redemption fine and its appeal is pending wherein a pre-deposit is made, it ought to be permitted to re-export the goods. The petitioner also offered to furnish a bond for such purpose subject to the outcome of its appeal. However, the respondent No. 2 vide communication dated 19.07.2023 rejected the request of the petitioner for re-export during the pendency of the appeal or till fulfillment of the conditions ordered in the Order in Original. Therefore, being aggrieved and dissatisfied, the petitioner has preferred this petition before this Court. 5.1. Learned advocate Mr. Gaurav Mathur for the petitioner submitted that the adjudicating authority could not have imposed the Condition No. 17.4 in the order of release of the goods for re-export subject to payment of redemption fine and penalty and other charges as applicable as ordered in paragraph Nos. 17.1, 17.2 and 17.3. 5.2. It was submitted that once the order is passed for payment of redemption fine of Rs. 5,00,000/- under Section 125 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : 1 [Provided that where the proceedings are deemed to be concluded under the proviso to subsection (2) of section 28 or under clause (i) of sub-section (6) of that section in respect of the goods which are not prohibited or restricted, 3 [no such fine shall be imposed]: Provided further that], without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in subsection (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. 8. In view of the above provisions of Section 125 of the Act, 1962, it is clear that redemption fine can be imposed in lieu of the confiscation of the goods if the same is imported in contravention of the any provisions of the Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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