Customs, Excise and Gold Tribunal - Delhi
Zinc-O-India vs Commissioner Of Customs, New Delhi on 22 April, 2002
Equivalent citations: 2002(143)ELT377(TRI-DEL)
ORDER
S.S. Kang Member (J)
1. Appellants filed this appeal against the order-in-appeal passed by the Commissioner of Customs (Appeals).
2. Brief facts of the case are that w.e.f. 25-3-96, the Export-Import Policy was amended and after this date, zinc dross came under restricted category. On the representation made by the importer, The DGFT issued a clarification to the effect that where the importer entered with the overseas suppliers, the firm agreement prior to 25-3-96 and the goods were shipped within 45 days from 25-3-96, the new Export-Import Policy will not be applicable in respect of import of non-ferrous scrap. The appellants made an import of zinc dross and filed a bill of entry on 11-6-96. The business premises of the appellants were searched and certain documents were taken into possession, which showed that the agreement was entered into for purchase of the zinc dross on 26-3-96 and, thereafter, it was shown to be entered on 25-3-96. It was also found that the appellants made certain over-writing in the date of bill of lading and the date of ship on board just to avail the benefit of old Export-Import Policy. The adjudicating authority confiscated the goods and allowed to redeem the same on payment of Rs. 10,000.00. A penalty or Rs. one lakh was imposed under Section 112(a) of the Customs Act.
3. The contention of the appellants is that all the documents were taken into possession and the list of documents, recovered from the premises of the appellants, show that sale contract was dated 12-3-96, invoice was dated 25-3-96 and bill of lading and packing list was dated 25-3-96. The appellants also produced a copy of the agreement to show that the contract was made on 12-3-96. The contention of the appellants is that as per clarification of DGFT, the agreement was entered prior to 25-3-96 and the goods were exported within time mentioned in the clarification.
4. The contention of the revenue is that the bill of lading was dated 7-6-96 and it was anti-dated to avail the benefit of the earlier Export-Import Policy. There was also over-writing in date of bill of lading and the date of ship on board. This fact was corroborated in the record maintained by the Shipping Agent. The original bill of lading contained the endorsement as per sale contract dated 26-3-96, which was changed into 25-3-96 by way of overwriting.
5. Heard both sides.
6. In this case, the dispute is whether the appellants are covered under the clarification issued DGFT. According to the clarification, issued by the DGFT, the firm agreement should be entered into prior to 25-3-96 and the goods be shipped within 45 days from 25-3-96. The documents, recovered from the appellants' premises and the record of their shipping agent, show that original bill of lading contained the endorsement of sale contract dated 26-3-96, which was changed to 25-3-96 by way of over-writing.
7. The date of departure was also changed to 25-3-96 whereas in the schedule of insurance certificate dated 2-4-96, the date of sailing of vessel had been shown as 30-3-96 and the invoice was also shown as 30-3-96. But the endorsement issued by the insurance company shows sailing date amended to read as 25-3-96. As the sale contract was prior to 25-3-96, therefore, I find no infirmity in the impugned order in respect of confiscation of the goods. However, taking into consideration the facts and circumstances of the case and the value of the goods, the penalty imposed under Section 112(a) of the Customs Act is reduced to Rs. 50,000.00, otherwise, the impugned order is up-held. The appeal is disposed of as indicated above.