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3. Statements of Shri Bipinchandra S.Shah, Proprietor of M/s.Shree Maruti Impex were recorded on 26.5.2010 and 27.5.2010 wherein he inter alia stated that he had imported Mulberry/Dupion Raw Silk Yarn without payment of duty and sold the same to High Seas sellers at Bangalore; that he does not have manufacturing facility to process the imported yarn; that to finance the imports, they received money from bank through Angadia firm and that money was deposited in their bank account and then sent through RTGS to the account of the High Seas sellers to complete the transaction of purchase. During the course of investigation, the five High Seas sellers represented to the Commissioner of Customs (Imports) that Bills of Entry already filed by M/s.Ravi Enterprises and M/s.Shree Maruti Impex may be cancelled and requested permission to file fresh Bills of Entry after amendment of Import General Manifest (IGM) on the basis of request to be made by the steamer agent/liner agent and to allow clearance of goods on payment of appropriate duty. High Seas sellers then filed Writ Petition No.14735-39/2010 in the Honble Madras High Court requesting that their representations dt. 23.4.2010 before the Commissioner (Import) be considered within a time frame and the above writ petition was disposed of vide a common order dt. 13.8.2010 wherein the High Court directed the Commissioner of Customs (Imports), Chennai to consider the representation and pass orders on merits and in accordance with law, within a period of 6 weeks from the date of receipt of copy of the High Courts order. Prior to disposing of the representations of the High Seas sellers in compliance of the High Courts order, the Commissioner of Customs (Seaport-Exports) extended the period for issue of show cause notice in respect of seized goods under Section 110 (2) of the Customs Act, 1962 by another six months. Before the Commissioner (Imports), the High Seas sellers raised the plea that although they had sold the Mulberry Raw Silk Yarn to M/s.Shree Maruti Impex and M/s.Ravi Enterprises, they had not received payment from them; that they were still in possession of the original documents viz. Bill of Lading to prove their title to the goods; that they were eligible to claim the ownership of the goods and file Bills of Entry in their names and therefore they may be permitted to file Bills of Entry in their names after the amendment of IGM and after cancellation of the Bills of Entry already filed by High Seas buyers.

4. The adjudicating authority vide the impugned order has (a) allowed the prayer of the High Seas sellers by directing cancellation of the Bills of Entry filed by High Seas buyers and permitting High Seas sellers to file Bills of Entry in their names after amendment of IGM (b) held that after re-filing of the Bills of Entry, the goods be assessed at merit rate of duty and (c) ordered provisional release of goods subject to compliance of clauses (a) and (b) above. Hence these appeals by the Revenue on the following grounds :-

9.4. In the opinion of this Court, it is clear from the conduct of the respondent that instead of finding out M/s.Magpie, to whom they sold the goods under a High Seas Sale Agreement, for recovery of their dues they are trying to pressurise the authorities for allowing them to cancel the bills of entry filed by M/s.Magpie and allow the respondent to file fresh bills of entry and substitute the name of the respondent in place of M/s.Magpie.
x) The adjudicating authority has erred in allowing the High Seas sellers to file Bills of Entry after amendment to be carried out in the IGM on the basis of a request to be made by their steamer / liner agents without examining the fraud angle involved in the present case. This aspect was required to be examined before allowing any amendment of IGM as per Section 30 (3) of the Customs Act, 1962. The issue relating to amendment of IGM has been settled by the Tribunal in the case of Biren Shah Vs Collector of Customs, Bombay in 1994 (72) ELT 660 (Tri.) vide para 10.4 whereof, it is cleared held as follows : Section 30 (3) clearly envisages that only if the proper officer is satisfied that there was no fraudulent intention, he may permit the amendment. Here the undisputed factual position is that the goods were sought to be imported in the name of M/s.Vikram Overseas solely for duty benefit and the amendment is sought tobe moved for substituting Vikram Overseas by Shri Biren Shah, when the fraud was detected. Hence the officer is well within the provision of Section 30 (3) of the Customs Act to reject the request for amendment, even if it had moved by the Steamer Agent ---. The adjudicating authority erred in not following the above legal position.

5. In the light of the above, we agree with the Revenue that the Commissioner ought to have taken into account the findings in the report of the DRI before passing the order permitting amendment of the IGM and filing of fresh Bills of Entry by the High Seas sellers and directing provisional release of the goods. Although the goods have only been provisionally released, permitting of the amendment of the IGM and filing of fresh Bills of Entry is not provisional in nature. We, therefore, set aside the impugned order and direct the Commissioner to pass fresh orders after consideration of the contents of the DRI report and after furnishing a copy of the same to the respondents. As the goods are stated to be perishable in nature, fresh orders shall be passed within 2 months from the date of receipt of this order, after extending a reasonable opportunity to the respondents of being heard in their defence.