Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Customs vs Alok Overseas on 23 December, 2003
Equivalent citations: 2004(92)ECC709, 2004(165)ELT252(TRI-DEL)
ORDER P.G. Chacko, Member (J)
1. This appeal of the department is against an order passed by the Commissioner of Customs, ICD, Tughlakabad (New Delhi) on 8-12-2000 in adjudication of a show cause notice dated 10-3-2000 issued to M/s. Alok Overseas, Shri P.K. Jain (partner of Alok Overseas) and M/s. Hoegh Lines. Initially the appeal was filed against M/s. Alok Overseas only. Subsequently, Shri P.K. Jain and M/s. Hoegh Lines have been impleaded as respondents 2 and 3 at the instance of the appellant vide Misc. Order No. 109/2003/NB(A), dated 30-5-2003 and Misc. Order No. 148/2003/NB(A), dated 21-7-2003.
2. The facts of the case are briefly as under :- M/s. Alok Overseas had imported goods in Container No. TRLU-2637741 which arrived at ICD, Tuglakabad on 23-3-99. The container belonged to the 3rd respondent, M/s. Hoegh Lines. The imported consignment was covered by a Bill of Lading dated 30-1-99 wherein the contents of the container were declared as "Brass Scrap ISRI Honey" and the weight thereof was declared as 20,223 Kgs. The consignment had been supplied by M/s. First American Metal Co., Houston, USA. As the importer had not filed any documents seeking clearance of the goods for more than six months, the Customs authorities developed a suspicion, consequent to which the container was weighed, destuffed and its contents examined in September, 1999. The results indicated that the total weight of the goods stuffed in the container was 28,230/- Kgs. (against what was declared as 20,223 Kgs. in the Bill of Lading) and that the consignment consisted of 18,230/- Kgs. of Brass Scrap in tightly packed bundles and 10,000 Kgs. of Tin Ingots concealed within the bundles of Brass Scrap. The Brass Scrap, Tin Ingots and the container were seized under a Panchnama dated 15-9-99 on the basis of the belief that all of them were liable to confiscation under the provisions of the Customs Act. In the course of further investigation, a statement of Shri P.K. Jain was recorded on 28-1-2000 under Section 108 of the Customs Act and some correspondences between the foreign supplier, M/s. Hoegh Lines, M/s. Alok Overseas (importer) and Customs authorities were gathered. The relevant invoice dated 30-1-99 issued by the supplier to the importer was also among the documents recovered by the authorities. On the basis of the investigative results, the department took the view that M/s. Alok Overseas (importer) had contravened Section 30 of the Customs Act by misdeclaring the weight of Brass Scrap and not declaring Tin Ingots in the Bill of Lading with intent to evade Customs duty on the goods. It was felt that the seized goods were liable to confiscation under various provisions of Section 111 of the Act and, further, that the M/s. Alok Overseas and Shri P.K. Jain were liable to penal action under Section 112 of the Act. The show cause notice dated 10-3-2000 followed. The proposals for confiscating the container and the goods and for imposing penalties on the importers were contested. The Commissioner of Customs, who adjudicated the disputes, passed the impugned order, the operative part of which reads as under :-
"Discussion and findings recorded by me hereinafore, evidence that none of the charges, carved out in the show cause notice is legally sustainable. I, therefore, quash the show cause notice issued to initiate these proceedings, lift the seizure of the impugned goods as well as of Container No. TRLU-2637741 effected on 15-9-99, allow the necessary amendment in the Import General Manifest No. 696 and permit the impugned goods tow be cleared as per the provisions of law on payment of Customs duty leviable thereon."
3. We have heard both sides and considered their submissions.
4. One of the allegations in the show cause notice was that M/s. Alok Overseas had contravened the provisions of Section 30 of the Customs Act by misdeclaring the quantity of Brass Scrap and not declaring Tin Ingots in the Bill of Lading with intent to evade Customs duty. Ld. Commissioner has rightly found that the obligation under Section 30 to deliver to the proper officer of Customs an import manifest declaring the truth of its contents is not on the importer but on the person incharge of the vessel and, therefore, the allegation of infringement of Section 30 against the importer in this case is baseless. It appears, this finding of the Commissioner is not under challenge in the present appeal. Yet another allegation raised against the importer in the show cause notice was that they had not filed any Bill of Entry for clearance of the goods, thereby contravening the provisions of Section 46 of the Act. Ld. Commissioner has examined this aspect also with sound reasoning. The Commissioner has carefully examined what had transpired through correspondence between the supplier, the importer, the persons incharge of the vessel and the departmental authorities and has found that the supplier as well as the Indian agent of M/s. Hoegh Lines had requested to the Customs authorities for amendment of the weight and description of the goods imported in Container No. TRLU-2637741. The Commissioner has found that such application for amendment in the IGM and Bill of Lading had been made prior to the date of issuance of the show cause notice. After examining the correspondences ourselves, we are satisfied that these findings of the Commissioner are unassailable. As a matter of fact, again, there is no categorical challenge to the said findings in the present appeal. M/s. Alok Overseas were unable to file any Bill of Entry as long as the application for amendment of IGM/Bill of Lading was pending with the Customs authorities and, in such circumstance, the suspicion of the department about the non-filing of Bill of Entry by M/s. Alok Overseas is misconceived. The finding recorded to this effect by Id. Commissioner has only to be affirmed. The allegation of misdeclaration raised in the show cause notice was in respect of the quantity and description of the goods. When the application for amendment of the quantity and description of the goods in IGM/Bill of Lading was pending with the department, it was premature on their part to allege misdeclaration against the importer. This view of the Commissioner is very well-reasoned. As confiscation and penalty proposed in the show cause notice are based on the above allegation of misdeclaration, they can hardly be sustained, now that misdeclaration has turned out to be unfounded. Hence we do not find any reason to interfere with the order of the Commissioner dropping the proposals for confiscation and penalty. The argument of the Counsel for M/s. Hoegh Lines in respect of seizure of the container under Section 118(a) of the Act, relying on the Board's Circular No. 450/53/98-Cus. IV, dated 19-11-99 read with Circular No. 450/82/95-Cus. IV, dated 7-7-97 and Circular No. 83/98-Cus., dated 5-11-98, is also forceful. The circulars are to the effect that, in cases where the goods are required to be detained for detailed examination, investigation etc., the goods shall be destuffed from the containers and stored in the warehouse and the containers should be released. The container in question should not have been confiscated. Apparently, the Commissioner lost sight of the Board's instructions which were binding on him.
5. We find that none of the grounds raised by the appellant is sustain-able on the facts and evidence of this case. In the result, the order of the Commissioner is upheld and the present appeal is dismissed.