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TMI Blog2002 (2) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods under imports. 3. The case was adjudicated. Duty demand of Rs. 7,19,202/- was made, goods confiscated and on a redemption fine given as Rs. 7,00,000/-. A penalty of Rs. 2,00,000/- was imposed on the appellants. The Tribunal vide Order No. 1429/2000, dated 11-10-2000 remanded the matter back on the following findings : - "2. After hearing Shri R. Raghu Raman, Ld. Chartered Accountant and Shri S. Sudarsan, ld. DR and considering the submissions made, we find that - (a) a Bill of Entry has been filed in the Cochin Custom House by the clearing agent showing the name and address of the importer as Controller of Materials, Naval Store Depot, Cochin - 682 004 declaring the goods to be computer parts under claim of exemption of notification No. 39/96. Since it was found that these imports were made by M/s. Siemens Nixdorf Information Systems Ltd., Bombay pursuant to the contract awarded at Naval Store Depot, Cochin and the goods were misdeclared i.e., instead of computers, declarations for computer parts were made the Commissioner after holding enquiries adjudicated the matter and passed the following order : - "I confirm the duty demand of Rs. 7,19,202/- (Rupees Seven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was reheard by the Commissioner and he found : - "11. In the original order there are only two notices, viz., M/s. Siemens Nixdorf Information Systems Ltd., Bangalore and M/s. Naval Store Depot, Kochi. M/s Pierce Leslie India Ltd., Cochin-3 is not a noticee in this case and a copy of the order was forwarded to them for information, since they were the Custom House Agents for the subject consignment. However, it is seen that copies of the order have also been forwarded to (1) The Chief Commissioner of Customs Central Excise, Bangalore (2) The Review Cell, (3) The Notice Board of the Custom House. In the subject case, the duty liability of Rs. 7,19,202/- lies on M/s. Siemens Nixdorf Information Systems Ltd., Bangalore as they are the real importers on the goods, on whom the Naval authorities had awarded the contract for supply of computers. However, as M/s. Siemens Nixdorf Information Systems Ltd., Bangalore, did not respond to the show cause notice and to the subsequent reminder letters and as the intimations informing the date of hearing addressed to them were returned undelivered, their Mumbai office was informed of the issue while requesting them to appeal for the hearing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice at Bangalore and since they had raised the indent on their Singapore office and imported the goods, M/s. Siemens Nixdorf Information Systems Ltd., Bangalore has been held as the importer and penalty has been imposed on them. As has been discussed earlier, a copy of Bangalore office was returned undelivered. 14. The original order has also discussed the role of the Naval authorities and has stated that "the action of the concerned officials of the Navy is not legal and proper. I refrain from initiating any action against them in the absence of mala fide on their part. I, therefore, drop all proceedings initiated against the Controller of Materials in the show cause notice. I however, advise him to be more careful in future." 15. The Counsel for M/s. Siemens Nixdorf has put forth various contentions in his written representation submitted at the time of hearing. He has stated that as the Naval Store Depot has filed the Bills of Entry holding themselves to be the importer and hence they were the actual importers and hence the duty demand if any, should be made on them and not on M/s. Siemens Nixdorf. However, this contention cannot be accepted at all, as it has been clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Thus it is seen that they are not job workers for defence purposes and the ratio of the decision quoted by them in this context does not apply to them. 18. The goods were declared as computer parts in Bill of Entry and in the Airway bill. Even in the invoice produced by M/s. Siemens Nixdorf Information Systems Ltd., nowhere it has been mentioned that the goods are personal computers. The name of the system and the configuration of the system have been mentioned from which prima facie it would appear that the goods imported are computer parts only. Thus the charge of misdeclaration made against M/s. Siemens Nixdorf Information Systems Ltd., Bangalore is just and proper. 19. The naval authorities by their submission dated 18-4-2001, have stated that they are no longer interested in the goods and that they have cancelled the contract awarded to M/s. Siemens Nixdorf. They have also produced letters of cancellation of the order served on M/s. Siemens Nixdorf Information Systems Ltd., Bangalore. By this action of the Navy, the entire scenario has changed. It has clearly been established that the goods have been imported by M/s. Siemens Nixdorf Information Systems Ltd., Bangalore a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n established that the actual importer of the goods is M/s. Siemens Nixdorf Information Systems Ltd., Bangalore. The naval authorities have subsequently cancelled the contract and have relinquished all claims for the goods. However, I find that the naval authorities have acted in an irresponsible manner and have contributed their mite in the impasse. I also find that the Navy stood to gain nothing from these acts as a fixed contract had already been given. Hence, I drop all proceedings initiated against the Controller of Materials in the show cause notice. I, however, caution him to be more careful in future. 23. The goods imported are personal computers, a product belonging to a field in which constant and rapid advancements are taking place by the day. As more and more advanced models have been introduced in the market subsequent to the import of the impugned goods, I find that the value of the computers, under import, have gone down to a large extent, since the import has been made. I consider this aspect also while deciding the case." And thereafter the duty demand of Rs. 7,19,202/- on goods imported vide Bill of Entry Nos. 1226 1227 both dated 5-3-99 was confirmed, the 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he redemption of imported goods covered by a Bill of Entry, to a person other than such an importer as declared on Bill of Entry. The import documents, the Airway Bill documents, are in the name of 'Controller Materials, Naval Stores, Kochi', therefore either the importer would be the owner i.e., the Supplier in Singapore i.e. M/s. Siemens Nixdorf Information Systems (Manufacturing) Pte. Ltd., Singapore or Controller Material, Naval Store, Kochi. The status of an importer can, on no stretch of interpretation, pass on to the present appellants, even if Naval authorities have cancelled the order by letter dated 18-4-2001. (b) We have carefully considered the case law submitted by the learned CA i.e., Sun Exporters Corpn. [1997 (96) E.L.T. 3 (S.C.)] wherein the Apex Court, held, after examining the definition of owner in Major Port Trust Act, 1963 and Bombay Port Trust Act, to include an "Agent" on basis of an endorsement made by "consignee" on the Bill of Lading which resulted in the "endorsee" becoming the consignee. We find no such endorsements on the Airway Bills etc. in this case. Therefore even if the appellants herein, contend before us, in the appeal, by the first senten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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