Customs, Excise and Gold Tribunal - Delhi
Cc vs Ashish International (P) Ltd. on 29 September, 2002
Equivalent citations: 2003(87)ECC180, 2003(159)ELT435(TRI-DEL)
JUDGMENT S.S. Rang, Member (J)
1. Revenue filed this appeal against the adjudication order passed by the Commissioner (Appeals).
2. Brief facts of the case are that M/s. Ashish International Pvt. Ltd. had imported goods in containers No. LHCU-2962497 and GSTU-4464826, which arrived on 22/23/3/1999 at ICD, Tughlakabad, New Delhi. The goods so imported, had been lying uncleared for more than six months as no documents were filed by the appellants to seek clearance of the same and this aroused suspicion. On the basis of suspicion, the containers, in question, were weighed on 4,9.99 and as per Weigh Bridge weighing slips No. 31 & 33, weight of the goods of container No. LHCU-2962497 and GSTU-4464826 was found to be 22,410 kgs. and 21,850 kgs. respectively. The weight so found was at variance with the weight declared in respective Bills of Lading and IGMs as 20,932 kgs. and 20,480 kgs. respectively.
3. The contents of the container No. LKHCU-2962497 were examined on 21.9.99 in the presence of two independent witnesses. 20 card board boxes were recovered from the container. Contents of 18 of those card board boxes found to be brass scrap, but the contents of two card board boxes, were found to be 'tungsten carbide bits', having a GIF value of Rs. 7,25,000. The contents uf other container No. GSTU-4464826 were examined on 24.9.99 in the presence of two independent witnesses. Card board boxes 18 nos., were recovered from the container. 17 of those card board boxes were found to contain 'brass scrap', but the 18th card board box was found to be filled with coloured metal weight 1900 kgs. Representative samples were tested by the CRCL and said coloured metal was identified as COBALT METAL IN-FLAKS having a purity of 98.9%. The appraised GIF value of said 1900 kgs. cobalt metal in flaks was Rs. 45,94,800.
4. In his voluntary statement, Shri P.K. Jain, inter alia, admitted that he was one of the Directors and holds 50% of the equity of importer; that they had imported 35 to 40 container loads since 1993 mostly from M/s. First American Metal Co., M/s. Arijment Metal Co. and M/s. S.B. International Co.; that suppliers were contracted telephonically; that he and his brother Sh. R.K. Jain were not much educated and could not speak or write English and as such, their work was done by employees, that his nephew Shri Arvind Jain was educated upto inter and had been living in America for the last 3/4 years: that after the confirmation of purchase on telephone, both parties used to contact in writing and transaction used to take place through bank; that imported goods were sold to different parties in India; that he and his nephew Shri Arvind were equal partners in M/s. Alok Overseas; that all the documents of their two abovenamed concerns were in the possession of Customs department in connection with a different case; that he had ordered for brass scrap, carbide tips and cobalt.
5. Investigations in the matter also revealed that a case of unlawful imports was booked on 4.1.99 against M/s. Alok Overseas, i.e. the other concern in which Shri P.K. Jain was a partner, and certain incriminating documents were seized from the office premises of importers shared by that other concern and in that connection goods valued at Rs. 1,68,82,200 were seized from godown of Shri Jain situated at N-54, Sainik Farm, New Delhi on 6.4.99 and 19,767.680 kgs. of Zinc and 9,015.600 kgs. of lead were seized from their business premises situated at 6031, Basti Harpool Singh, Sadar Bazar, New Delhi on 22.6.99.
6. Enquiries made with the Shipping Lines namely M/s. Patvok, agents for M/s. Heogh Lines in India informed that they had not received any request from the importer for making any amendment in the Bill of Lading No. 849-HOU-DEL-102 or IGM No. 696 dated 5.3.99 and they had not made any request to Customs for making any amendment in the Bill of Lading or in the IGM. They had, however, added that the supplier i.e. M/s. C.N.A. Metals, USA had made a request on 18.6.99 for the amendment of description of goods as per revised Bill of Lading, but that revised Bill of Lading was not made over to the shipping line. On scrutiny of letter dated 18.6.99 of M/s. C.N.A. Metals, it was observed that M/s. C.N.A. Metals had requested only for an amendment in the description of goods. There was no request for any change in the quantities.
7. Inquiries made with other shipping agent, namely, M/s, APL India Pvt. Ltd., New Delhi, revealed that they had not received any request from the importer or the supplier regarding amendment in Bill of Lading or IGM and, therefore, they had not sought any amendment in those documents from Customs. Revised Bill of Lading in respect of container No. GTSU-4464826 was also supplied for the first time by Sh. P.K. Jain on 28.1.2000.
8. From the foregoing facts, it was found that the importers had contravened the provisions of section 30 of the Customs Act, 1962 by mis-declaring the actual weight of brass scrap and not declaring the tungsten carbide tips and cobalt to evade the customs duty leviable thereon and, therefore, the goods were liable to confiscation under Sections 111 (d), 111 (f), 111 (1) and 119 of the Customs Act, 1962.
9. On the basis of ground elucidated above, show cause notice vide C.No. viii(ICD)6/TKD/Prev/56/99/Pt./4302 dated 23.3.2000 was issued to the importers to call upon them to show cause, as to why-
(a) the seized brass scrap, weighing 39,460 kgs. and valued at Rs. 16,96,780 (CIF), should not be confiscated under Sections 111 (d), 111 (f) and 119 of the Customs Act, 1962;
(b) The seized Tungsten Carbide Tips (weighing 2,900 kgs. and having CIF value of Rs. 7,25,000) and Cobalt Metal (weighing 1,900 kgs. and having a CIF value of Rs. 35,04,800.00) should not be confiscated under Section 111 (d), 111(f) and 111(1) ibid. The importers, Sh. P.K, Jain and Sh. R.K. Jain were also asked to show cause as to why penal actions under Section 112 ibid should not be taken against them for their deliberate misdeclaration, concealing the more valuable goods, thus committing serious omissions & Commissions rendering the goods liable for confiscation.
10. The Commissioner of Customs, ICDs, TKD., New Delhi adjudicated the case vide Order-in-Original No. SKS/CC/TKD/111/2000 dt. 28.11,2000, quashed show cause notice, allowed the necessary amendment under the provision of law and also allowed to clear the goods on payment of duty leviable thereon.
11. Heard both sides.
12. The contention of the revenue is that the goods, in question, were not the same as shown in the Bill of Lading. Apart from brass scrap, as mentioned in Bill of Lading, the tungsten carbide bits and cobalt metal were also found and the request for amendment in the Bill of Lading and IGM, was received after detection of the discrepancy in the goods as per Bill of Lading. The adjudicating authority allowed the amendment in IGM without any cogent reasons.
12. The contention of the respondents is that Sh. P.K. Jain, wrote a letter dated 29.7.99 to the Customs Authorities seeking amendment in the manifest. On receiving the Bill of Lading, as the goods mentioned in those documents did not match with the purchase order, Shipping Lines through their agent vide letters dated 29.7.99 & 9.8.99 had informed the Customs authorities about the discrepancy and submitted the amended documents alongwith the request for receipt of IGMs. Therefore, the contention of the revenue, in the present appeal that no request was made by Sh. P.K. Jain on 29.7.99 regarding discrepancy, is not tenable.
13. In this case, the contention of the revenue is that the request for amendment in the Bill of Lading and in the IGM is made only after detection of the discrepancy in the goods as mentioned in the original Bill of Lading. On receipt of Bill of Lading, Sh. P.K. Jain, vide letter dated 29.7.99, informed the Customs authorities regarding discrepancy in the Bill of Lading. The receipt of this letter, was admitted by Sh. Deepak Sharma, employee of the Customs department in his cross-examination. In this letter, Sh. P.K. Jain mentioned that the supplier of the goods had applied for amendment in Bill of Lading and IGM. The Commissioner of Customs, in the impugned order, also gave a finding of fact that supplier of the goods, vide letters dtd. 29.7.99 & 9.8.99, addressed to the Asstt. Commissioner of Customs (Import), asked for amendment in IGMS. The Commissioner of Customs gave a finding that in this situation, the importer had initiated steps necessary to get the wrong corrected. The necessary request for amendment in IGM and Bill of Lading was received by the Customs authorities prior to seizure of goods. In this situation, I find no infirmity in the impugned order where the Commissioner of Customs held that allegation of mis-declaration by the importer, is not sustainable. The appeal is rejected.