Customs, Excise and Gold Tribunal - Delhi
Shree Shyam Overseas vs Cc on 16 September, 2004
Equivalent citations: 2005(179)ELT102(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. Prima facie, on the question of jurisdiction and absolute confiscation of the goods, the appellants have a strong case. Therefore, stay applications are allowed.
2. The appeals also can be disposed of on merit as there is no dispute regarding facts.
3. I have heard both the sides and gone through the record. From the record, it is evident that the goods in question (Nylon fabrics) were imported by the appellant firm. M/s. Shree Shyam Overseas, Delhi from M/s. Show Best Corporation, Taipei, Taiwan, through the port of Calcutta, where the Bill of Entry was submitted and the goods were accordingly cleared from that port, by the Customs authorities. After the clearance of the goods, the firm handed over the same to the Transport Company, M/s. Shri Karni Transport Company, Calcutta, for onward transportation to Delhi. On the way near Varanasi, the truck carrying the goods, was intercepted by the Customs Preventive Officers and the goods were seized on the ground that the quantity of the goods was more than what was mentioned in the declared import documents i.e. Bill of Entry, Invoice and the marks and nos. appearing on the rolls did not tally with the Bill of Entry and the Invoices. On completion of the proceedings, show cause notice was issued by the Asstt. Commissioner, Varanasi and the Commissioner, Lucknow passed the impugned order directing the absolute confiscation of the goods and also that of the truck. He has also imposed penalty of various amounts, as detailed in the impugned order-in-original, on the appellants.
4. From the resume of the facts, it is quite evident that Asstt. Commissioner, Varanasi, had no jurisdiction to issue the show cause notice and it could only be issued by the Customs authorities at Calcutta in view of the ratio of the law laid down by the Apex Court in the case of Union of India v. Ram Narain Bishwanath [1997 (96) E.L.T. 224 (S.C.)] wherein also the goods were imported and cleared at Paradip Port in the State of Orissa and later on, those goods were seized and the matter was adjudicated by the Customs authorities in West Bengal. The Apex Court observed that the Customs authorities in West Bengal had no jurisdiction to issue the show cause notice and adjudicate the proceedings. This judgment of the Apex Court has been followed by the Tribunal also in the case of H. Ismail v. CCE, Cochin [2001 (133) E.L.T. 191 (Tri. - Bang.)].
5. Apart from this, the goods in question i.e. Nylon fabrics were not smuggled goods at the relevant time. These were cleared by the Customs authorities at Calcutta Port. In case of any discrepancy in the quantity imported and declared in the relevant documents, and non-presence of the marking and nos. on the goods, no absolute confiscation could be ordered as has been done through the impugned order by the adjudicating authority. The adjudicating authority was duty bound to give option to the appellant-company to get the goods redeemed by fixing the redemption fine, keeping in view the duty amount involved on the differential quantity of the goods. But neither such an option was given by him, nor he determined the evasion of duty involved on the differential quantity of the goods.
6. The adjudicating authority has also imposed a penalty of Rs. 5 lakhs on Shri Siddhartha Agrawal, appellant, but he did not import the goods and had nothing to do with the importer, Tarun Kumar, sole proprietor the appellant-firm. Therefore, penalty on Sidhartha Agrawal, appellant, is set aside.
7. Similarly, the imposition of penalty of Rs. 1 lakh on Jagdish Prasad Khaitan, appellant, is also not justifiable. The only allegation levelled against him is that he had been in touch with the Customs House Agent and was looking after the clearance of the goods. But the Bill of Entry was not signed by him, it was presented on behalf of the importer by the CHA. Therefore, penalty on him is set aside. The imposition of penalty of Rs. 50,000/- each on the transport company, M/s, Karni Transport Company and M/s. P.G. Modak & Sons, the CHA also does not stand justified from the material on record. The transport company had no role in the import of the goods and the clearance of the same from the Customs authorities. The goods were handed over for transportation to the company and it is difficult to accept that the company had knowledge about the details of the goods imported by the importer. Similarly, the Customs House Agent only presented the bill of entry at the instance of the importer. The details therein were filled from the invoice supplied by the importer. There is nothing on record to suggest if they had concealed any material facts from the Customs authorities. Whatever information was supplied to the Customs House agent by the importer, the same was mentioned in the bill of entry. Therefore, under these circumstances, the Customs House Agent could not be penalised and as such penalty against the Custom House agent is set aside.
8. The imposition of penalty of Rs. 25,000/- on Shri Harjeet Singh, owner of the truck is also not justifiable as he was not accompanying the truck at that time. The Transport Company booked the goods at the instance of the importer. Shri Harjeet Singh, owner of the truck had no personal relations with the importer. Therefore, penalty against him is also set aside.
9. For facts and circumstances detailed above, the confiscation of the truck also could not be ordered as there is no evidence on the record to suggest if the driver of the truck or the Transport Company, knew that any illegality has been committed by the importer in the import and clearance of the goods.
10. Since the adjudicating authority has failed to quantify the duty amount involved on the excess quantity of the goods and also not given option to the importer to get the goods redeemed by determining the redemption fine, in my view, the matter deserves to be sent back to the adjudicating authority.
11. In the light of discussion made above, the impugned order is set aside. However, regarding the confiscation of the goods and imposition of penalty on the importer, M/s. Shri Shyam Overseas, only, the matter is sent back to the adjudicating authority for determination of the duty amount involved on the excess found goods, and the redemption fine for the redemption of the confiscated goods. The imposition of penalty on the importer, M/s. Shyam Overseas will be decided afresh by the adjudicating authority. The appeals of the appellants accordingly stands disposed of.