Customs, Excise and Gold Tribunal - Calcutta
Abp Pvt. Ltd. vs Commissioner Of Customs (Port) on 19 August, 2002
Equivalent citations: 2003(151)ELT705(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. Vide the impugned Order, the Commissioner of Customs (Port), Kolkata has confiscated the newsprint imported by the appellant company with an option to them to reexport the same on payment of redemption fine of Rs. 5,50,000.00 (Rupees five lakh fifty thousand), Rs. 8,10,000.00 (Rupees eight lakh ten thousand) and Rs. 11,00,000.00 (Rupees eleven lakh) - in respect of three bills of entry mentioned above. However, he has not imposed any penalty, upon the appellants on consideration of their bona fides.
2. As per facts on record, the appellants entered into a contract with M/s. Mayar H.K. Ltd., Hong Kong for supply of around 3,000.000 M.Ts. of "Standard Newsprint containing not less than 70% mechanical woodpulp" of Korean origin. On receipt of the three consignments out of the contracted quantity, the appellants filed three bills of entry with the Customs for clearance of the goods upon payment of duties in terms of various notifications. As per the appellants, they came to know that a sample drawn from a con- signment of the same supplier by another Newspaper Publisher, was not found conforming to the required percentage of mechanical woodpulp and hence, they approached the Commissioner of Customs for allowing them the re-export of the goods. Thereafter, a sample was also sent by them for test purposes and it was reported that the mechanical woodpulp is 55%. They again approached the Revenue for re-export of their goods. The Commissioner, vide his impugned Order, allowed the re-export on payment of redemption fine. The appellant company has agreed with the said decision.
3. Shri S. Mukhopadhyay, learned Consultant for the appellants submits that inasmuch as the Commissioner has not doubted their bona fides, there was no justification for imposition of redemption fine for the purposes of re- export. He submits that it was they who detected that the newsprint sent by their foreign supplier, was not conforming to the specifications ordered by them and was having 55% mechanical woodpulp instead of 70% or more and there was no mala fide intention on the part of the appellants to import the wrong goods or to misdeclare the same. He also submits that they had also received the Certificate from Korean Supplier confirming the presence of 71% to 72% of mechanical woodpulp. Inasmuch as the foreign supplier has sent them the wrong goods, they cannot be penalised by imposition of redemption fine upon them for the purposes of re-export. He also draws our attention to the observations made by the Commissioner to the effect that the bona fides of the appellants are not doubted. He submits that as per the decision of the Hon'ble Supreme Court in the case of Siemens Ltd. v. Commissioner reported in 1999 (113) E. L.T. 776 (S.C.), imposition of redemption fine for re-shipment of the goods, was not justified. He submits that the said decision of the Supreme Court was subsequently followed by the Tribunal in the case of Siemens Public Communication Networks Ltd. v. CC (Airport), Calcutta reported in 2001 (137) E.L.T. 623 (Tri.-Kolkata) and the appellants in that case, were allowed to re-ship the goods without any fine.
4. After hearing Shri A.K. Pandit, learned J.D.R. for the Revenue and after giving our careful consideration to the submissions made by both sides and after going through the impugned Order, we find that in the pre- sent matter, it is not the Revenue's case that the appellant company has in- tentionally imported the newsprint with mechanical pulp content of less than 70%. In fact, from the impugned Order, we find that the Commissioner has not imposed any penalty upon the appellants, taking into consideration their bona fides. In these circumstances, following the ratio of the earlier decisions of the Supreme Court and the Tribunal referred supra, we set aside the imposition of redemption fine upon the appellants and allow their appeal accordingly.