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2.3 As per the appellants, the goods ordered by the appellant, i.e., APS Software (Information Technology Software) loaded in CD ROM (Computer Disc Read Only Memory) were air freighted in 18 packages from Frankfurt vide flight No.BA 143 dt.27.2.99 Rot No.676/99 Line No.25 against Airway Bill No.125-0608/6075 dt.24.2.99 HAWB No.FCS 96604 259 dt 24.2.99. The weight of 18 packages containing the ordered goods was shown as gross 90 Kgs.. The goods shipped were covered by 18 invoices numbering 3406-5791 to 3406-5808, all dt.23.2.99. The description of the goods given in the invoices read as Information Technology Software and their total value declared was DM 4556379.88 CIF.

2.5 However, the clearance of the goods was withheld by the Directorate of Revenue Intelligence (DRI) on alleged suspicion as to the true nature of the contents of the import packages. According to the DRI, the goods were not Information Technology Software but were actually simple documents.

2.6 Thereafter, the DRI authorities conducted enquiry in the course of which the appellant's officers were summoned and their statements were recorded under section 108 of the said act. During the course of such recording of the statements and also otherwise the DRI authorities made it clear to the appellant's officers concerned that the subject consignment did not contain the goods as described in the bill of entry, invoices and the other relevant shipping documents. In the premises, the appellant, by a facsimile dt.10th May 1999 informed Siemens A.G., the foreign supplier, that it was abandoning the goods in question and would not be responsible or liable in any manner whatsoever in respect of the same. In the said facsimile message the appellant further informed Siemens A.G. that it was arranging return of the relevant invoices issued by Siemens through its bankers. It was further made clear that the loss in revenue arising due to the above would be that of Siemens A.G..

2.7 Thereafter, on 11th May 1999, Siemens AG, Germany by a facsimile message to the commissioner of customs and the Directorate of Revenue Intelligence referring to the appellant's aforesaid communication that the goods sent against invoices dt. 23rd February 1999 did not allegedly contain APS Software as was ordered by the appellant and that the appellant had allegedly decided to abandon the goods, requested permission for re-export of the goods back to Germany.

2.8 Thereafter, the appellant returned the subject invoices to Siemens AG, Germany and no payment was effected in respect of the subject consignment. The foreign supplier thereafter supplied the ordered goods, i.e. Information Technology Software (APS Software) loaded with CD ROM against the appellant's original order which were duly allowed clearance upon the appellant's filing bill of entry therefor by the customs authorities at Calcutta between 18.8.99 and 14.9.99.

3.3 The ld.adv. submits that the Commissioner has erred in law as well as on facts in imposing the penalty on the appellant under section 112(a) ibid. The purported finding of the Commissioner is that the appellant had intended to clear the said goods by misdeclaring the same as Information Technology Software and claiming exemption from duty not entitled, is wholly erroneous and contrary to the materials on record. The relevant records including those detailed in show cause notice and in the order impugned would show that the appellant had at no point of time access to the said goods to ascertain whether or not the packages containing the said goods contained the goods ordered for by the appellant. Ld.adv. is quite emphatic that the appellant had placed the order for Information Technology Software (APS Software) with foreign supplier. The relevant records including those relied upon by the department themselves in issuing the show cause notice and passing the said order would also show that there is nothing on record to establish that the appellant had ordered for some other material in the garb of APS Software. Evidence on record, submits the ld.adv., clearly goes to show that the foreign supplier had informed the appellant in all relevant material documents that the goods shippied were as per the appellant's order and were APS Software ordered for by the appellant. He submits that it is on the basis of these documents that the appellant had filed the bill of entry in question on 1st March, 1999 declaring the said goods as Information Technology Software. In fact, a specific query raised by the Group Appraiser and the Asst.Commr. concerned, the appellant furnished all the necessary documents and technical literature regarding Software ordered for. It is also on record that a doubt is being raised by the DRI/Customs authorities that the goods in question were not as described by the said bill of entry, the appellant sought clarification from the foreign supplier who issued a certificate on 24.9.1999 that the goods under import were software related items. This certificate was submitted by the appellant to the customs authorities. The ld.adv. argues that the appellant, therefore, had no occasion to inspect the subject goods to find out whether or not the said goods were as per the claim of the foreign supplier and as contained in the document/certificate issued by them. It is also clear from the records, submits the ld.adv., that as soon as the appellant became convinced that the goods were those which were not ordered for by the appellant, upon detention order passed by the DRI authorities on 29.4.1999, the appellant informed the foreign supplier as well as customs authorities about the abandonment of the said goods and sought explanation from the foreign supplier for omission or commission on their part. It is also on record that the said consignment was opened and examined by the DRI officers on 29.4.1999. As such, the appellant cannot be alleged to have been involved in any manner with the importation of wrong goods by misdeclaring the same in any manner whatsoever. He, therefore, argues that the circumstances as explained above, it is wholly erroneous on the part of the Commissioner to hold that the appellant had furnished false documentary evidence in support of their claim about the contents of the imported packages. It was wrong on the part of the Commissioner to have rejected the appellant's contention that the mistake is at the supplier's end.