Customs, Excise and Gold Tribunal - Calcutta
Guru Ispat Ltd. vs Commissioner Of Customs (Port) on 4 July, 2002
Equivalent citations: 2002ECR713(TRI.KOLKATA), 2003(151)ELT384(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. The appellants are aggrieved with the impugned order passed by the Commissioner of Customs (Port), Calcutta vide which he has allowed the appellants to re-export the imported goods on payment of redemption fine of Rs. 5 lakhs (Rupees five lakhs only). In addition, he has observed that if the goods are redeemed for clearance of home consumption, the appellants would pay the differential duty of Rs. 8 lakhs (approx.) (Rupees eight lakhs only). Personal penalty of Rs. 1 lakh (Rupees one lakh only) has also been imposed under the provisions of Section 112(A) of the Customs Act, 1962.
2. As per the facts on record, the appellants obtained an advance licence for importation of defective mild steel HR sheets of thickness of 3 mm and in terms of advance licence, they were required to manufacture MS washers out of the said goods and export the same. The appellants entered into a contract with their foreign supplier on or about 3rd March, 2000 for supply of the said defective mild steel HR sheets. The said goods were shipped by the foreign supplier on 20th March, 2000 who also despatched the copies of all the relevant shipping documents to the appellants. The appellants filed a home consumption bill of entry on 20th April, 2000 with the Customs declaring the particulars given by the foreign suppliers in the shipping documents. On 22nd April, 2000, five containers arrived at the Port of Calcutta and pending physical examination of the same, the bill of entry was assessed by the Customs. On 29th April, 2000, the physical examination of the five containers, in the presence of the Representative of the appellants and its clearing agent, revealed that the containers did not contain the goods ordered by the appellants and were found to be loaded with tin free sheets and black plates. The appellants expressed their surprise and on the same day wrote a letter to the Deputy Commissioner of Customs not to proceed ahead with the appraisement of the goods contained in the five containers and submitted that they would contact their foreign supplier to ascertain the reason of such discrepancy. Thereafter, the appellants took up the matter with their foreign supplier and immediately thereafter, the appellants by a Fax Message dated 1st May, 2000, intimated him about the discrepancy and requested him to explain the reason. The said suppliers by their Fax Message dated 2-5-2000 disclosed that owing to certain mistake caused during the transhipment of the said goods from the Port of Singapore, five containers containing different goods belonging to a different buyer at Singapore had been wrongfully shipped to the appellants. The foreign supplier requested the appellants to re-ship the goods to Singapore so that the same can be replaced. Accordingly, the appellants, on 3rd May, 2000, wrote a letter to the Deputy Commissioner placing on record the foreign supplier's Fax Message admitting the mistake and requested for allowing the re-shipment of the goods. As the goods were not being allowed to re-ship, the appellants moved the Hon'ble High Court of Calcutta by way of filing a writ petition which was disposed of by the Hon'ble High Court with direction that the goods be allowed for re-export after completion of all formalities.
3. Subsequently, the appellants were issued a show cause notice on 5-6-2000 proposing confiscation of the goods and imposition of personal penalty upon the appellants. The said show cause notice resulted into passing of the impugned order by the Commissioner of Customs.
4. We have heard Shri Pinaki Ghosh, Id. Advocate along with Shri S. Chatterjee, Id. Advocate appearing for the appellants and Shri A.K. Pandit, Id. JDR for the Revenue.
5. The main contention of the appellants is that there was no mala fide on the part of the appellants and the mistake has occurred at the Port of transhipment at Singapore which stands clarified by the foreign supplier. In the circumstances, the imposition of fine by the adjudicating authority for the purposes of re-shipment of the goods was not justified. It is their contention that they also came to know about the wrong-shipment for the first time when the containers were examined physically by the Customs on 29th March, 2000 and they immediately took up the matter with their foreign supplier and also requested the Customs authorities not to proceed ahead with the assessment of the goods. As such, submits the Id. Advocate that there being no mistake on the part of the appellants or any mala fides, imposition of fine and penalty imposed upon the appellants is not justified.
6. The Revenue's contention on the other hand, is that inasmuch as the goods sent by the foreign supplier, was of much higher value than the goods ordered by the appellants, there is every possibility that the importer would have cleared the goods, if not detected and would have sold the same in the local market.
7. We have considered the submissions made from both the sides. The Commissioner has allowed the appellants to re-export the goods but has placed the same under the condition of payment of redemption fine of Rs. 5 lakhs (Rupees five lakhs only). We find that there are various decisions of the Hon'ble Supreme Court as also of the Tribunal laying down that in case of re-export of the goods, no redemption fine is imposable. The said decisions were considered by this Bench in the case of M/s. Siemens Public Communication Networks Ltd. reported in 2001 (137) E.L.T. 623 (Tribunal) = 2001 (43) RLT 57. Para 5 of the said decision referred to the earlier decision and as such is reproduced below for the sake of convenience :
"5. We have heard the submissions made from both the sides. During the course of arguments the Id. Advocate appearing for the appellants made it clear that the appellants have opted for re-export of the goods. Accordingly, they have challenged the order of the Commissioner imposing the redemption fine and penalty for the said re-export, which according to the appellants is not permissible to be imposed in view of the various case laws relied upon by them. It is seen that in case of Siemens Ltd. v. CC - 1999 (113) E.L.T. 776 (S.C.), their Lordships have held that since goods have been allowed to be re-exported, neither redemption fine nor duty was required to be paid. The Tribunal in the case of HCL Hewlett Packard Ltd. - 1997 (92) E.L.T. 367 (T) has held that no redemption fine is imposable when re-export of the goods is allowed. To the same effect is the decision of the Tribunal in the case of Padia Sales Corpn. v. CC - 2992 (61) E.L.T. 90 and in the case of Skantrons (P) Ltd. - 1994 (70) E.L.T. 635. We further find that the Tribunal in the case of G. V. International and Anr. - 2000 (39) RLT 272, following the earlier decisions of the Tribunal, has set aside the orders passed by the lower authorities ordering confiscation of goods and their release on payment of redemption fine and penalty. Further in the case of Commissioner of Customs, Calcutta v. J.B. (P) Ltd. -2000 (39) RLT 1074, the order of the lower authorities allowing re-export of the goods without fine and penalty was upheld."
8. Inasmuch as we find that wrong, shipment of the goods by the foreign supplier, was not on account of any mala fide on the part of the appellants, the same seems to be a genuine mistake, re-export should be allowed without any redemption fine. The appellants have established their bona fides by taking immediate steps on coming to know about wrong-shipment of the goods. The observations made by the Commissioner are in the realm of assumption and presumption and in the absence of any evidence reflecting upon the appellants' conduct to import the wrong goods by mis-declaring the same, cannot be held to be conclusive. As such, we are of the view that the imposition of redemption fine and penalty upon the appellants are not justified. We accordingly set aside the same allow the re-export of the consignment without any redemption fine, penalty and duty. Appeal is disposed of in the above terms.