Customs, Excise and Gold Tribunal - Delhi
Allen Bradley India Ltd. vs Collector Of Customs on 12 August, 1991
Equivalent citations: 1991ECR405(TRI.-DELHI), 1992(58)ELT268(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against the Order-in-Original No. 62/90 dated 16-5-1990 passed by the Collector of Customs, New Delhi.
2. The appellants had filed a Bill of Entry dated 5-8-1988 for clearance of electronics components. The goods were assessed on the basis of documents produced by the Importers and, accordingly, duty was paid, but on physical examination of the goods on 4-10-1988, the goods were not found as per Bill of Entry and invoice and in place of individual components, mounted PCB's were found for which the party did not have a valid licence. The Additional Collector who adjudicated the proceedings as per Order No. 329/89 ordered for confiscation of goods under Section 111(d) of the Customs Act for mis-declaration. However, he allowed the goods for re-export on payment of redemption fine of Rs. 1,00,000/-. This order was challenged by the appellants before the Tribunal contending that there was no mis-declaration and this was due to wrong shipment effected by the supplier and, accordingly, requested Adjudicating Authority to permit them to re-export of the said goods. In support of their letter they produced a supplier's letter dated 30-8-1988 to prove that wrong goods had been supplied from the supplier. The Tribunal vide Order No. A-477/89-NRB dated 24-11-1989 remanded the case back to the Additional Collector for passing a fresh reasoned order after taking into consideration all the evidences now produced in support of the appellants' arguments and also after giving the appellants a show cause notice and after following principles of natural justice.
3. In pursuance of the order of remand, a show cause notice was issued 'as to why re-export of the goods should be not allowed and as to why impugned goods should not be confiscated under Section 111(d) and (m) of the Customs Act and why penalty should not be imposed under Section 112 of the Act. After examining the evidence and hearing the party, the Collector as per impugned Order again ordered for confiscation of goods under Section 111(d) and (m) of the Customs act, but allowed these to be redeemed on payment of redemption fine of Rs. 1,00,000/-. However, he did not give any order regarding re-export of the goods on the ground that there is nothing in Section 125 of the Customs Act which makes it binding on the Adjudicating Authority to give an option for re-export of the goods. Hence, the present appeal.
4. We have heard Shri A.C. Jain, learned Advocate, for the appellants and Shri G. Bhushan, learned SDR for the respondent.
5. Shri Jain submitted that appellants had not contravened the provisions of Section 111(d) as appellants had no connection with the despatch of wrong goods by the supplier. He said that in view of clear findings of the Collector that appellants did disclose the facts of the mis-declaration to the Department even before examining of the goods, the declaration in the Bill of Entry stood modified and charge of mis-declaration under Section 111(m) is not sustainable. He contended that since there has been a specific proposal with the issue of re-export of goods, it was not correct on the part of the Collector to retract from the proposal and to decline the permission to re-export. He drew our attention to the relevant finding portion of the Adjudicating Authority in the impugned order which reads as under:-
(i)". . . On the basis of the records I have to hold that party did disclose the fact of mis-declaration to the department even before the goods had been examined. Therefore benefit of doubt has to be given to the party and I hold that the wrong goods have been shipped because of the mistake of the supplier"
(last few lines from page 8 of order).
(ii) "As regards the invokation of Section 111(d) is concerned, it is seen that if the goods were as per the declaration in the bills of entry there would not be any violation of licensing provisions as these goods are piece parts imported by the party under the phased manufacturing programme".
(first few lines of 1st para on page 7 of order).
He argued that despite of the above findings the Collector erred in declining the permission to re-export of the goods wrongly shipped by the supplier and confiscation of the goods was not justified relying upon the ratio of the decision in the case of Miles India Ltd. v. Collector of Customs [1991 (52) ELT 577]. He said that appellants acted bona fide in importing goods as well as declaring and knowledge is essential ingredient even for imposition of redemption fine. In support of his contention he filed the copies of the unreported judgments of Supreme Court and Bombay High Court in the cases of Vijaya Kumar & Co. v. Collector of Customs - Civil Appeal No. 4445-4446/88-(S.C.) and M.R. Bhansali & Co. v. Union of India and Ors. in W.P. No. 1333 of 1988, Bombay High Court.
6. Shri Bhushan, appearing for the revenue, submitted that once goods do not correspond in respect of value and other particulars made in the Bill of Entry, goods are liable to confiscation and redemption fine was justified. He said that redemption fine is distinguishable from personal penalty. Redemption fine is a fine in rem which is enforceable against the goods in question and knowledge is not essential ingredient in imposing redemption fine. He stated that the ratio of the decisions cited by the appellants' counsel cannot be applicable to the case in hand as they are distinguishable on facts. On the other hand this issue is covered by the latest decisions of the Tribunal in the cases of Omex (India) v. Collector of Customs, Calcutta, Order No. A-445/90-NRB dated 13-9-1990 [1991 (51) ELT 573 (Tri.)] and Shri Girish Mehta v. Collector of Customs, Delhi in Order No. A-466/90-NRB dated 15-10-1990, wherein the Tribunal has taken a view that knowledge is not an essential ingredient for imposition of redemption fine.
7. In reply Shri Jain submitted that the two decisions relied upon by the D.R. are clearly distinguishable from the facts and each case has to be decided on its own merits. In view of the clear finding that due to mistake of exporter wrong goods were shipped and appellants had no concern with such wrong goods they should not be penalised for no fault of theirs.
8. We have considered the arguments advanced on both sides and perused the records including written submissions and citations. The Collector has given a clear finding that wrong goods have been shipped because of the mistake of the supplier and party did disclose the fact of mis-declaration to the department even before the goods had been examined. Further, the appellants had requested for re-export of the goods at the earliest, as the goods were wrongly supplied by the Exporter. Therefore, there was no intention on the part of the appellants to clandestinely import the goods into India in violation of the law. The law does provide for confiscation of the goods if they have been unauthorisedly imported. However, it has to be considered in the light of the facts and circumstances of each individual case and merely because the import is considered as unauthorised, confiscation and imposition of fine is not an unavoidable exigency. The Collector himself was satisfied about the bona fides of the appellants as it was purely mistake on the part of the exporter in supplying the wrong goods which would clearly show that there was no intention on the part of the appellants in violating the provisions of the Customs Act and Import & Export (Control) Act. Therefore, considering the guidelines laid down in the decisions cited by the appellants' counsel and in the facts and circumstances of the case, we hold that it is not necessary to order confiscation and imposition of redemption fine. Accordingly, we set aside the order of confiscation and imposition of redemption fine and the appellants are permitted to re-export the goods in question as prayed.
9. Thus, this appeal is allowed.