Customs, Excise and Gold Tribunal - Delhi
H.C.I. Comnet Systems And Services Ltd. vs Commr. Of Cus. on 6 August, 2003
Equivalent citations: 2003(158)ELT349(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. In this appeal filed by M/s. H.C.L. Comnet Systems & Services Limited, the issue involved is whether the goods sent by the foreign supplier wrongly by mistake are liable to confiscation and whether the penalty is imposable on the Appellants under the provisions of the Customs Act.
2. Shri Nand Kishore, learned Advocate, submitted that the Appellants are engaged in the activity of providing networking and telecommunication services; that they had placed a purchase Order dated 31-8-2001 on Cisco Systems Pvt. Ltd., USA in respect of various networking equipments; that one of the items indicated in the list was one unit of 4.0 CAB-530.MT = Male DTE RS-530 Cable, 10" foot priced at US $ 60; that under the impression that the foreign supplier has shipped the aforesaid Cable, they had filed Bill of Entry dated 18-10-2001 giving the description as 'CABLE'; that, however, on examination, it was found that the imported goods were not cables and in fact were "PCMCIA CARD 128 MB"; that the Assistant Commissioner confiscated the goods with an option to redeem the same on payment of redemption fine of Rs. 5,000/- and imposed a penalty of Rs. 5,000/- on them; that the Commissioner (Appeals) also under the impugned Order has rejected their appeal holding that this is a case of misdeclaration attracting confiscation inasmuch as the goods did not correspond in material particulars with the declaration made on the Bill of Entry.
3. The learned Advocate, further, submitted that as soon as the discrepancy was detected, they contacted the foreign supplier who clarified under their communication dated 18-2-2002 that the Appellants had ordered and invoiced CAB-530MT valued at US Dollar 60/-; that they had shipped the incorrect item for which they regretted and requested the Appellants to return the part so that they could ship the correct part; that based on this clarification from the foreign supplier, they had submitted a letter dated 16-4-2002 that the discrepancy had happened on the supplier's end and that the Appellants had declared the goods as per invoice and purchase order; that there was no misdeclaration, whatsoever on their part. He finally submitted that there was no mala fide intention on the part of the Appellants; that there can also not be intention otherwise in respect of differential value of US Dollar 537/- which is equivalent to Rs. 28,805/- on which customs duty would come to Rs. 8,800/-; that it cannot be alleged that the Appellants and the supplier of the statute of CISCO would misdeclare to enjoy the benefit of duty of such small amount which is extremely miniscule in comparison with the operations undertaken by them.
4. Countering the arguments, Shri S.C. Pushkarna, learned JDR, emphasised the fact that the description given on the Bill of Entry did not tally with the goods which were received and as such there was misdeclaration on the part of the Appellants.
5. I have considered the submissions of both the sides. I find considerable substance in the submissions of the learned Advocate that the mistake in sending a wrong part had taken place at the end of the supplier. It has been admitted by M/s. CISCO under their letter dated 18-2-2002 in which they have regretted wrong shipment and have requested the Appellants to return the part. The Appellants have also shown the purchase order and the invoice received from [he foreign supplier wherein the product was described as Cable only. In these circumstances and facts it cannot be alleged that there was intention of misdeclaration of the description of the goods by the Appellants. Accordingly the goods in question are not liable for confiscation and no penalty is imposable on the Appellants. In similar situation, the Appellate Tribunal in the case of West Coast Papers Mills Ltd. v. CC, Chennai - 2001 (130) E.L.T. 259 (T) has allowed the paper to be mutilated and cleared as waste paper. The learned Advocate also relied upon the decision in the case of Guru Ispat Limited v. CC (Port), Calcutta -2003 (151) E.L.T. 384 (T) wherein the re-export of the goods was allowed when the foreign supplier had shipped the wrong goods. I, therefore, set aside the confiscation as well as the penalty on the Appellants and allow re-export of the impugned goods.