Customs, Excise and Gold Tribunal - Bangalore
Unisindo Trading Pvt. Ltd. vs Commissioner Of Cus. on 26 July, 2002
Equivalent citations: 2003(153)ELT81(TRI-BANG)
ORDER S.S. Sekhon, Member (T)
1. The matter relates to goods imported and sought to be cleared under B/E 036/31-3-92 filed by M/s. Dhruva Imports & Exports Private Ltd., Hyderabad (herein after referred to as DHRUVA). The said B/E has been presented by CHA Sea Horse Shipping and Ship Management Private Ltd., (herein after referred to as SEA HORSE) for clearance of the goods. In the B/E the imported goods were declared as 35776 Kgs. of lead scrap valued at US $ 16278.08 (Rs. 4,76,664.12). The consignment imported, arrived in two containers - Nos. 223955 (7) and 244844 (8). There were, in all 160 drums in the two containers. While DHRUVA was the importer, the goods have been consigned to DHRUVA by foreign supplier M/s. Unisindo Trading Pte. Ltd., Singapore, (herein after referred to as M/s. UNISINDO). The consignment arrived in Chennai Port but; subsequently it was got transferred to Hyderabad for clearance on admitted forged Power of Attorney, and other requests made to transfer the consignment from Chennai. DHRUVA had sought clearance of the goods under OGL Appendix 6 List 8 Part I item 689 AM 1990-93. The consignment, on examination was found to contain lead scrap weighing 4629 Kgs. (against declared wt. of 35776 kgs) the balance weight was of 22 varieties of ball bearings. The value as ascertained was:-
Ball Bearing Rs. 1,69,07,185.00 Lead Scrap Rs. 1,62,013.00 Drums in which the above Goods have been received Rs. 32,000.00 Total Value Rs. 1,71,01,198.00 2(a) In his statement Shri Vikram of DHRUVA stated as follows :-
(i) DHRUVA Imports & Exports (P) Ltd., was started for merchant export business by him and his wife in 1991.
(ii) The consignment covered by the B/E had been booked in the name of DHRUVA by Shri Kishore, who is known to him through business connection.
(iii) Shri Kishore has informed him that one Shri Patel of Mumbai had visited Singapore and arranged for the consignment.
(iv) He had asked SEA HORSE to clear the consignment as he himself was the CHA and therefore, did not want to clear the consignment which has arrived in the name of his company.
(v) The Power of Attorney in the name of M.A, Vijaya Raja had been issued with a forged signature of his wife Smt. N. Rashida. With this Power of Attorney, request has been filed for transfer of the consignment from Chennai Port to Hyderabad for clearances.
(vi) Shri Kishore has forged signature of his wife Smt. N. Rashida in the POA.
(vii) The slip containing drum nos. (in which scrap is available) in the two containers had been provided to him by Shri Kishore.
(viii) He was lured to allow the documents for the import in the name of his company as he was promised Rs 50,000/- per container by Shri Kishore/ Shri Patel.
2(b) Shri Vinay of SEA HORSE in his statements had deposed as follows :-
(i) He knew Shri Vikram and DHRUVA as the said Vikram was also a CHA. (ii) Since Vikram requested SEA HORSE to clear the consignment arrived in the name of DHRUVA, he has presented the B/E for clearance. (iii) He does not know about the contents of the containers. He has declared particulars in the B/E based on the documents such as invoice, packing slip etc., handed over to him by Shri Vikram. 2(c) Shri Kishore, in his statement had deposed as follows :- (i) He knew Shri Patel of Mumbai for 10 years. (ii) The said Shri Patel was in Import and Export business. (iii) He has introduced Shri Vikram to Shri Patel for clearing Shri Patel's Cargo to Hyderabad Port. (iv) He knew that the subject consignment (relatable to B/E 36 dt 31-3-92) was shipped after agreement between Shri Vikram & Shri Patel. He has received Shipping documents and handed over to Shri Vikram. 2(d) Shri Patel in his statement has stated as follows :- (i) He knew Shri Kishore and his family members and also Shri Kishore's father (when he was alive). He used to stay with Shri Kishore whenever he visits Hyderabad. (ii) Shri Vikram of DHRUVA, who is also a CHA was introduced to him by Shri Kishore in connection with the export of garments from Hyderabad. (iii) He has denied any knowledge about illegal import of ball bearings in the two containers. (iv) He denied having booked the consignments. (v) He denied, he had visited Singapore during 1991.
In the above circumstances, and in the light of the fact that the consignments pertaining to B/E, 36 dt. 31-3-92 was found to contain ball bearings as against declared goods-lead scrap. Show Cause Notice dt. 26-9-92 was issued by the Respondent Commissioner. The SCN sought to -
(i) Confiscate the imported lead scrap, ball bearings and drums (under Section 111(d), (1) & (m) and 119 of the Customs Act, 1962.
(ii) Impose penalty under Section 112(a) on DHRUVA, SEA HORSE, Shri Kishore, Shri Patel, Shri Vikram & Shri Vinay.
No SCN has been issued to the Appellant herein M/s. UNISINDO, the supplier of the goods from Singapore.
3(a) All the Noticees filed reply to the SCN. Each one of them have submitted that they can be proceeded with as proposed in the SCN. In short,
(i) Shri Vikram of DHRUVA point to Shri Kishore as the importer,
(ii) Shri Kishore points to Shri Patel as responsible for import.
(iii) Shri Vinay and SEA HORSE pleads he is ignorant and he has filed B/E because another CHA viz. Shri Vikram requested for clearance of the consignment through SEA HORSE as the goods belong to his (Shri Vikram) own company DHRUVA.
(iv) Shri Patel submits that he is nowhere in the picture and merely because he introduced Shri Kishore to Shri Vikram he can be faulted.
3(b) The Appellant, M/s. UNISINDO have represented to the Respondent Commissioner vide letter dt. 20-9-93 and other letters dated inter alia
(i) DHRUVA placed orders on them for 40 MTs of lead scrap.
(ii) At the time of shipment of the consignment to DHRUVA, there was yet another consignment in the warehouse for shipment to Kabul.
(iii) There was mix up in the shipment and this resulted in goods intended for India being carried to Kabul.
(iv) The correspondence filed with letter dt. 20-9-93 would show regular follow up with Shri Vikram for remittance of money and the letter received from Kabul would show that the said person (at Kabul) has received wrong consignment.
(v) In the above circumstances, DHRUVA and Shri Kishore cannot be suspected.
(vi) As goods are not intended for the Indian importer they (UNISINDO) should be allowed to receive the goods and for this purpose re-export shall be permitted.
They suo motu participated in the Adjudication Proceedings and were also heard, however, the request made for reshipment was not granted. Hence this appeal.
4. The Commissioner, by the impugned order
(a) Absolutely confiscated the impugned goods viz. Lead scrap, ball bearings and drums under Section 111(d), 111(m) and Section 119 of the Customs Act, 1962.
(b) Refused request of M/s. UNISINDO for re-shipment out of India. (c) Imposed penalty of Rs. 40 lakhs on DHRUVA, Rs. 30 lakhs on Shri Vikram and Rs. 30 lakhs on Shri Kishore under Section 112(a) of the Customs Act, 1962. (d) Dropped proceedings against Shri Patel, Shri Vinay and M/s. SEA HORSE. (e) Did not find any liability of penalty on the appellants herein. 5. We have heard both sides and considered the matter and find :-
(a) The appellants herein had made the following submissions as recorded in the impugned order :
"(i) In about January 1992, their Export Manager, while on business trip to Dubai was introduced to Sri Vikram, Director of M/s. Dhruva by one of their buyers in Dubai. Thereafter, Sri Vikram placed an order with them for about 40 Mts. of lead scrap at a price of US $ 455 PMT. CIF on 90 days DA.
(ii) Normally they would not encourage new buyers the facility of 90 days DA terms, but their Dubai buyer requested them to draw bills on Dhruva for 90 days DA. Accordingly, they drew the bills on Dhruva for 90 days through their bank State Bank of India, Bazar Ghat Branch, Hyderabad vide their invoice No. 30053 dated March 13, 1992 for US $ 16,278.08 for shipment of 2 containers of Lead scrap vide Bill of Lading No. 330565659 dated February 14,1992.
(iii) In their warehouse, there was another consignment of Lead scrap plus Ball bearings, meant for shipment to Kabul via Odessa port to one of their buyers at Kabul.
(iv) Delivery orders were given to their shipping Agents for both consignments as they were to be shipped out in the same week for their respective destinations i.e. 2 containers of Lead Scrap to Hyderabad (India) and two containers to Kabul.
(v) They wrote a letter No. UTC/11/IND/92 dated May 20, 1992 to M/s. Dhruva for having not received the payments of the bills drawn on them for 90 days as the bills were already over due. They had tried to reach Shri Vikram over telephone before writing the letter but some lay had replied saying that Shri Vikram was not available at that time. Thereafter, they had been writing continuously letters to M/s. Dhruva but there was absolutely no response from them nor Sri Vikram to their number of telephone calls made to him, and always a lady used to tell them the non-availability of Sri Vikram.
(vi) They requested one of the representatives of the local firm in Singapore, who was on a trade visit to India, to call upon Sri Vikram and ascertaining the position. But he could not contact the Indian Importer despite his sincere efforts and it was reported that only a lady used to answer the telephone number given to him. She, however, neither knew the whereabouts of Shri Vikram nor his new address. When their representative visited Hyderabad, neighbours gave information that they had not seen Shri Vikram for quite some time.
(vii) They requested their Dubai buyer, who introduced Sri Vikram to them, to pay the overdue bills with interest which caused embarrassment to him, Sri Vikram was not replying even to his telephone calls.
(viii) They requested one of their local Indian Companies, who were doing business with them and having office at Bombay, to help them. Accordingly, Sri Paresh Shah visited Hyderabad on February 3, 1993 to find out the whereabouts of Sri Vikram and, if available, to make him speak to them over the telephone to Singapore.
(ix) Their Kabul buyers cleared the consignment of 2 containers of Lead scrap along with Ball bearings when it arrived at Kabul after 11 to 12 months of despatch from Singapore, which was the normal time. When they opened, they were shocked to see that all the 160 drums contained only 100% Lead scrap. On February 3, 1993, Sri Khan of Kabul Trading Company telephoned to them and informed that the goods received did not belong to them. On verification with their warehouse staff and the Shipping Agents it was found that their illiterate/semi-illiterate Warehouse staff had erred in delivering the consignments to the Shipping Agents who shipped an erroneous consignment to Kabul via Odessa which was destined to Hyderabad.
(x) Shri Paresh Shah of Bombay got in touch with Sri Vikram on February 4, 1993. Sri Vikram called them over telephone and explained the hardship undergone whereby he was arrested and put under detention for about 10 months for wrong importation of goods other than scrap. They informed Sri Vikram about the wrong shipment and Shri Paresh Shah was not to claim any expenses from him as it was not Shri Vikram's mistake. Sri Vikram informed them that the Customs authorities were going to auction the goods as he (Sri Vikram) was neither claiming the goods nor going to pay the bills in the Bank. They, therefore, suggested that they would send a supplementary invoice to the Bank in Hyderabad. But this suggestion did not evoke any positive response from Sri Vikram. It seemed that as Sri Vikram was confined in a goal on account of the unintended and wrong shipment he seemed to have lost faith. They enclosed copies of their correspondence with Sri Vikram.
(xi) They affirm and reiterate that nobody in India was even remotely responsible for this mishap and that punishing anybody on this count would be a total miscarriage of justice.
(xii) They further affirm and reiterate that there was absolutely no mala fide intention on their part to cheat or defraud anybody in their error of wrong shipment, in fact, they had taken action against the Supervisor of their Warehouse section by sacking him from his service.
(xiii) They continue to be the owners of the goods and since there was no other way to recover the actual value at Hyderabad, they would request to pass order for reshipment of the goods to them through their agent. The freight charges and other incidental expenses would be borne by them without demure.
(xiv) In the normal course of International trade, such reshipment was being invariably granted and they were informed that the Apex Court of India had also passed such order to reship the goods which had not been paid by the Indian Importers. In the light of the liberalised policy programme being pursued by Indian Government and as the wrong shipment was on account of a bona fide lapse of a section of their Company, they would earnestly request for reshipment of the goods."
(b) The Commissioner after considering the submissions of the appellants found as follows, as regards his role, in his impugned order.
"60. As mentioned earlier, M/s. Unisindo have provided a third dimension to the issue. Although, M/s. Unisindo of Singapore have not been made one of the Noticees, they have come up with a representation dated September 20, 1993/October 15, 1993 addressed to the Adjudicating Authority claiming themselves to be the supplier of the said Ball and Roller bearings and requested for permission for re-export of the goods to them. They claimed ownership of the goods. They explained that the consignment meant for Kabul party was sent to Hyderabad inadvertently due to the mistake of their godown employees against whom action was already taken. They attended the personal hearing held on June 8, 1995 through their Learned Advocates Shri H.R. Shetty of Bombay and Shri D. Pandu Ranga of Hyderabad.
60.1 I have examined their request very carefully. In my opinion, M/s. Unisindo's request for re-export does not merit favourable consideration for the reason that their story of inadvertent wrong despatch of goods cannot be believed at all. In their letter dated September 20, 1993, M/s. Unisindo mentioned as under:
"In the meantime on 4-2-1993 Mr. Paresh Shah of Bombay who had been requested to go to Hyderabad by our local contact had got in touch with Mr. Vikram. Mr. Paresh Shah and Mr. Vikram called us over telephone and Mr. Vikram explained us the hardship he had undergone through, for no fault of his whereby he was arrested and put under detention for about 10 months, for wrong importation of the goods other than scrap."
60.2 The above narration of M/s. Unisindo attempts to project that Sri Vikram was kept informed at least in February 1993 about the so called wrong despatch of the goods. If it is true, nothing prevented Sri Vikram to place the so called true facts before the Adjudicating Authority. It is significant to note that Sri Vikram submitted his reply to the Show-cause Notice on July 26, 1993 i.e. about 5 months after he was supposed to have known about the wrong despatch of the goods. Yet, no mention of it was made in his reply. On the contrary he has put the blame squarely on the duo S/Shri Kishore and Patel. It is, therefore, crystal clear that, for the reasons best known to them, M/s. Unisindo cooked up a cock-and-bull story in order to secure an order for re-export of the goods. Some invisible hand behind must be operating to get at the goods in this dubious and foul means. It must have pressed the services of M/s. Unisindo to achieve this goal. Therefore, I have no hesitation in rejecting the plea of M/s. Unisindo outright. They have no locus standi in the case in as much as their claim of continued ownership of goods is without any foundation whatsoever. I do not consider this as a case of wrong shipment and, therefore, the question of permitting re-export does not arise at all."
(c) A perusal of the impugned order and the findings therein, especially para 53 there of reveal the following.
"53. This is a case of alleged illegal importation of Ball and Roller Bearings at the Inland container Depot of Hyderabad. The country of origin of the said Bearings is Singapore, the usual source of supply in most of the cases. It is an interesting case wherein the Triumvirate - S/Shri Vikram, Kishore and Patel - appeared to have come together to import the said contraband goods in the guise of Lead Scrap. The modus operandi adopted by them was novel. It is observed that soon after detection of the case, each one of them trying to shift the blame on to the other and, after a long intermission, the foreign supplier, adding a new dimension, comes up with a request for re-exportation on the ground that he continues to be the owner, in the absence of any payment received in respect of the said goods."
This case therefore is found to be a case of Modus Operandi adopted by S/Sri Vikram, Kishore, and Patel, who have come together, to import Ball Bearings in the guise of lead scrap. No involvement and/or preconcert on part of the foreign shipper is found. Thereafter, as regards the liability for confiscation of the ball bearings the findings in the impugned order are -
"..... The importer sought clearance of the said goods under Item No. 689 of Part I in List 8 of Appendix 6 to the OGL of the Import-Export Policy for 1990-93 A.M. The import under the said OGL could be permitted only in respect of the actual users of Ball and Roller Bearings. Thus, the importer ought to have obtained from the Licensing Authority and produced before the Customs. But, M/s. Dhruva have failed to do so. Moreover, they misdeclared the contents of the containers. The real contents could be known only when the containers got examined by the Customs in the presence of S/Shri Vikram, Kishore and Vinay and also the Panch witnesses. All this massive evidence establishes beyond doubt that M/s. Dhruva can be considered as the real importer and Sri Vikram played an active role in smuggling of the said Ball and Roller Bearings....."
Thereafter, considering the material on record that Vikram had arranged to get the consignment which was shipped to have landed at sea Port of Madras, diverted to Hyderabad ICD where on a forged Power of Attorney, which was having the forged signature of one Smt. N. Rashida, his own wife, forged by Shri Kishore, as per the Hand Writing Expert, a Bill of Entry was filed to clear the goods at ICD Hyderabad. This Bill of Entry was signed by one A.V. Raja, whose whereabouts and identity could not be established. Then the Commissioner concludes.
".....It shows that he took active participation in the whole affair of smuggling of the Ball and Roller Bearings. In view thereof, M/s. Dhruva have rendered the said goods liable to confiscation under Section 111(d) and 111(m) of the Customs Act, 1962....."
The above findings, as arrived at, by the adjudicator, leaves no doubt, in our minds, that the import and it's diversion from Sea Port of Madras and filing of B/E, for clearance at Hyderabad, was organised in the name of M/s. Dhruva an existing firm, which was based on fraudulent forged documents signed by unknown undetermined persons; therefore it can be safely concluded that the importers in this case though declared on Bill of Entry, as M/s. DHRUVA, were fictitious non-existent or/and fraudulent. In such a case of importers, in whose name Bill of Entries had been filed, as claimant for the imported goods, but who are subsequently found to be not existing or and genuine but are fictitious, and documents for payments of goods were not cleared, & where the foreign exporters continued to be owners of goods, and were awaiting payments and had requested for re-shipment of those goods, on the ground of mixed up shipment, the Tribunal had in the case of Bin Sabt Jewellery v. CC, New Delhi [2000 (120) E.L.T. 169 (T)] not upheld the confiscation of Gold Bars (in that case) under Section 111(d) and (m) of the Customs Act, 1962 and ordered it's reshipment, if the appellant, the foreign shipper, was not able to find alternative buyers for the said goods in India. Following the same, in the present case, when we conclude that, B/E has been filed on the basis of forged Power of Attorney by undetermined and unknown fictitious persons, as importers, and the ownership of the goods remain and vests with the foreign shipper, we cannot uphold the confiscations under 111(d) and 111(m) as arrived, in the impugned order, as also, refusal to reship the goods, especially when the foreign shipper suo motu participated in the Adjudication Proceedings, and there is no finding of any act of malfeasance, nonfeasance on his part by the Adjudicator to have rendered the goods liable for confiscation. The adjudicator in his grounds for refusal of reshipment, has not considered this vital aspect. We find that, Shri Vikram, being involved in the conspiracy of clearance of the goods under import; will obviously have enough reasons not to divulge the true nature of the facts to the Adjudicator. He and other conspirators had nothing to gain by divulging and admitting the "pressing demands of the foreign shipper for money" that would be increasing and accepting a liability, uncalled for, especially when the entire defence of the conspirators is to throw the burden on one another, as found by the adjudicator. We therefore do not share or/and approve the findings of the Adjudicator, as arrived at in para 60.1 & 60.2 of the Order as regards the request of Reshipment by foreign Supplier. The facts herein being similar as in Bin Sabt case (supra), we would consider that reshipment order should have been granted.
(d) We find that in the case of Savitri Electronics Co v. CC [1992 (62) E.L.T. 395 (T)], the Tribunal had held, that a foreign supplier has a right to resell the goods, when they are abandoned by an Indian importer and since the foreign buyer in that case was not a party to the fraud and the ownership of the goods continued to vest in him, such foreign suppliers were entitled to clear the goods against any valid licence or ask for re-export of the goods. We find, that in the facts of this case, the decision of Savitri Electronics should have been applied and reshipment as requested granted.
(e) These cases of the Tribunal as found applicable by us as herein above, rely upon, the law as settled by the Supreme Court in the case of UOI v. Sampath Rai Dugar [1992 (58) E.L.T. 163 (S.C.)]. The S.C. in that case, on a finding that the first respondent was not a party to any spurious or other fraudulent plan hatched, held that re-export could be allowed. This case was decided under the Imports and Exports (Control Act) read with Customs Act, 1962, the Import Control Law, applicable as in this case. Therefore, the conditions under which re-export could be allowed, as per the law laid down by S.C., in the case of Sampath Rai Dugar (supra), should have been the factor to be considered by the Collector. The findings in the impugned order, in para 60.1 & 60.2 as extracted herein above, reveal that this aspect, has not been considered. Applying the ratio of the case law and Sampat Rai Dugar of the Supreme Court to the facts of this case, we would arrive at a finding that re-export in this case can be granted.
(f) We find, that certain drums, were found to exclusively contain lead scrap and such drums could not therefore be offending non-declared goods. Ball Bearings imports, at the relevant time, were permissible, in case of certain varieties, as free imports, under OGL and actual user condition. Only for certain varieties , imports were restricted which required a licence. There is no finding arrived at, as to what are the Bearings, in this case, falling in each category. What is the C.I.F. values of the goods which are restricted/offending, and thus liable for confiscation under Section 111(d). The Customs Appraising Manual of the Custom House, at Para 11, Chapter 5 provides--
"11. RELEASE OF NON-OFFENDING GOODS When a given consignment comprises both offending and non-offending goods, placed separately it is desirable to release the non-offending part of the goods and detain the offending part of the goods for the purpose of initiating adjudication proceedings."
Therefore, while release orders for drums containing lead scrap and OGL covered Ball bearings, could not be granted to a fictitious claimant of such imported goods as in this case, yet there appears to be no reason to adjudicate the same and confiscate the same absolutely, when the foreign shipper is seeking re-shipment eligible to him.
(g) We find, that the Customs Appraising Manual Vol. II under the Chapter 5 Part II (Import Trade Control) (Adjudication and Allied Procedures) vide para 17A provides for circumstances under which 'reshipment' is to be allowed.
"As per instructions of the chief Controller of Imports & Exports re-shipment should be allowed only where by clearance of banned goods for home consumption (even on payment of fine/penalty), the policy of the Government is likely to be defeated by disorganizing local industry and trade. In other cases and specially where there has been a deliberate infringement of ITC Regulation, deterrent penalty not in any case less than the profit margins should be imposed and clearance allowed for home consumption only rather than allow the offender to escape the consequences of their action by payment of nominal penalties and additional freight. While passing an order for re-shipment in lieu of confiscation it has to be verified that payment, for the goods has not been made to the suppliers abroad or if made there is evidence to show that foreign exchange is being received back on re-shipment."
Considering these directions in the Manual issued by the Department, which the adjudicator was bound to follow, then, even if the goods are found to be prohibited for import, when there is no finding of a deliberate infringement of ITC regulation, as also once it is arrived at by the Adjudicator that the payment for the goods has not been made to the suppliers abroad and the foreign shipper is not involved in the spurious activity of the subject import, and clearance on B/E is by a fictitious non-existent person an order for reshipment should have been granted.
(h) Considering the counter/cross objections filed to this appeal by the Revenue, we find
(i) As regards the matter of purchase orders presented along with the Bill of Entry not giving any quantity and the same being fabricated, does not induce us to change our views. Since Shri Vikram and Shri Kishore in concert have been found by us to have forged Power of Attorneys and used them as also forged signatures on the Bill of Entries, and had enough reasons to keep the legitimate claims of the shipper away from the adjudicator, would not have hesitated to present the forged purchase orders. This, therefore cannot be a reason to uphold the order of refusal of request of reshipment by the foreign supplier, which we find has to be granted.
(ii) As regards the non-mention of mis-despatch on part of Vikram having its knowledge in February 1993 itself, we have already found that Shri Vikram had reasons to ignore and hide or and keep the same away from the shipper and the adjudicator. The conspirators in India attempted to defraud Revenue and the conduct would be a valid reason to us to conclude that they have cheated the shipper also,
(iii) The plea of Kabul Importer's letter indicating the despatch of mixed consignment of lead scrap and ball bearings to be routine, on part of the shipper, induces us to accept the plea of 'mix up of shipment'. In any event this would be an evidence material to support the plea that the shipper was having a consignment of lead scrap for shipment to India.
(iv) As regards the plea of the shipper having no locus standi in the present proceedings, to seek reshipment We do not accept the same in view of the decision of the Tribunal in the case of CNS Fortune Trading Ltd. v. CC (AP), Mumbai - 2002 (143) E.L.T. 618 (T) = 2002 (51) RLT 246 (CEGAT-Mum.) and the Bombay High Court decision in the case PFAFF Industriamas Chinen MBH v. ACC [1988 (37) E.L.T. 500 (Bom.)]. We also find that the adjudicator had allowed the shipper to participate in the adjudication proceedings and the shipper participated therein. We also find that the foreign shipper is entitled to seek reshipment of the goods which are in his ownership based on law laid by the supreme Court and followed by the Tribunal. Therefore, we reject this plea on the question of locus standi of the shipper, made by Revenue.
Since we have considered the matter, in the facts of this case, we do not find any reason to uphold the order of the adjudicator on the grounds taken in the counter/cross-objections. The same are rejected.
(i) In the facts of this case, we find a gross non-compliance to the established law on reshipment, as laid down by the Supreme Court in the case of Sampath Rai Dugar, also non-implementation of Board's instruction in the Manual on this subject have not been followed, which we find were applicable and binding on the Adjudicator. We cannot, therefore, uphold the order of absolute confiscation of the goods and refusal of reshipment as arrived at. The entire goods i.e lead scrap, drums and the Ball Bearings therein should have been allowed for reshipment, if found necessary on a nominal fine, if some of the goods were found to be restricted/banned for import. From the impugned order, we do not find, any effort made to determine as to what was the value as per Section 14 of the Customs Act of the goods i.e. lead scrap, Ball Bearings permissible and restricted under import. The determination of value under Section 14 was required to be arrived at by the proper officer, as the Mazhar values cannot be accepted as Section 14 value. After arriving at these findings, a nominal reshipment fine only related to banned/restricted value goods, should have been determined. Since no valuation has been separately arrived at, we are not in a position to determine; as to what could be the nominal fine for re-shipment in the facts of this case. We would therefore, set aside the order and remit the same to the Adjudicator, to rede-termine the CIF value of the different kinds of goods, separately, and thereafter determine the reshipment fine, if any, required to be imposed, in the facts of this case.
6. Appeal disposed of in the above terms.