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9. The Import Export Code No. 0494008644 allotted to M/s. Sargam Enterprises, was found to have been cancelled by JDGFT vide their circular No. 5/IE/94 issued in November, 1994 on the ground that the firm was not existing. It is pertinent to point out here that as on the date of filing of the Bill of Entry No. 56720 (dated 21-12-94) or even as on 12-12-94 i.e. the date of Bill of Lading the firm has no existence and therefore the importation is prima facie invalid in the absence of valid Import Export Code Number.

(iii) The goods viz., bearings of market value Rs. 1,194 Crores, which were not declared and smuggled in the guise of gambier require a valid import licence; in the absence of the same, they are liable to confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992. Further, the importing firm has no valid Import Export Code number as on the date of importation. Therefore, the goods viz., the bearings and the declared item gambier also are liable to confiscation under Section 111(d) of the Customs Act 1962 read with Section 7 of Foreign Trade (Development and Regulation) Act, 1992.

(o) Ld. Advocate therefore prayed that the order of Hon'ble Vice-President may therefore be concurred.

93. Heard ld. Advocate Jayaraj for M/s. Madras International (CHA firm) and Kannan. He reiterated the charges in page 19-19 of Order-in-Original and reply thereto in para 40.8 thereof (page 25). He further argued that his clients had no mala fides as -

(a) Importer-Exporter Code was available on B/E and accepted by Customs Officers and Computer;

(b) 4 previous consignments of same importer had been cleared by Customs without any problem in the same Custom House;

94. Heard ld. J.D.R. Shri Ravinder Saroop. He reiterated the findings of Hon'ble Brother Member (Judicial). Facts had already been outlined and need not be repeated. He argued that in 1986 (24) ELT 308 it had been held that discrepancies should not be allowed to let off the culprit and the chaff should be separated from the grain. He reiterated the findings of Hon'ble Member (Judicial) in para 13 of the Order and submitted that as per Bhoormull's case, no mathematical precision of proof was called for. He argued that use of false Importer-Exporter Code could not be detected by Custom House due to huge volume of workload. But it was clear that the importer had used wrong name and address, opened bank account with false information to obtain the code falsely. The address of introducer in Bank was also not correct. Kannan had stated that Kamlesh Sanghvi was connected with Mardia and Surana, who were identified with photos. So they were more than casual acquaintances. Previous business dealings with Kannan were confirmed by Surana. Sanghvi's mother was not examined, as this was not asked for. Regarding penalty on Kannan under Section 112(a) of Customs Act, 1962, he argued that as per 1997 (96) E.L.T. 526 Madras HC, no mens rea are required for importing penalty thereunder. He stressed that there was enough evidence on record linking Mardia and Surana to the offending goods. In the absence of Sanghvi, Hon'ble Member (J) had correctly reached on the statement of Rohit Sanghvi and his father. The statement that Surana told Sanghvi to leave Madras was not challenged before the adjudicating authority. He concluded that looking at the totality of evidence there was no incoherence and it led to Surana and Mardia via Kamlesh Sanghvi. So he prayed that penalties be imposed as ordered by Hon'ble Member (Judicial).