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4. The above order of the Collector was reviewed by Central Board of Excise & Customs and direct the Collector to file this appeal. The Board on examination of the records of the case have stated in their order that the order is not legally correct and proper on the following amongst other grounds:

(1) The argument made by the importer and accepted in the order-in-original about wrong shipment of the cargo does not appear to be convincing, since except Seal No. of the containers, other aspect related to the import of documentation in question were found in order. Invoice, Packing list and containers according to order for purchasing. If shipment was wrongly made during physical loading of the cargo at the load port at least containers should be different. But surprisingly containers were correct, which were taken for loading. Therefore, it appears to be permissible that cargo was same, which was supposed to be shipped. If anything was wrong, that was seal and at the shipping of the cargo.
(6) Importers have not convincingly explained as to why there was a delay of 4 months (i.e. from August 1991, the date of Bill of Lading and Nov. 1991) from the supplier in pointing out wrong shipment. The fact that the supposedly wrong shipment went unnoticed for more than four months further indicates that the importer's explanation is an afterthought after their mala fide acts were detected by the department.
(7) The fact that the Directors namely S/Shri Pawan Goel, B.Garg, Anil Goel and Sushi) Goel did not comply this office summons dt. 12.11.1991, 15.11.1991, 19.11.1991, 28.11.1991, 4.12.1991, 9.12.1991, 23.12.1991, 11.2.1992 and 6.3.1992 but avoided appearance on various grounds. The failure to give evidence is also an indicator of their guilty intentions in respect of goods under import.
The SUNFLAME'S opinion is:
Some sample of unfinished brass casting in shape of burners have been shown to me by Custom Officer.
I am of the opinion that these can be used as burner in gas stove/cooking ranges after doing required further finishing/processing.
The market rates of these burners is Rs. 85/- to Rs. 90/- per kg. approx. in the market.
Ld. DR pointed out that the categorical opinion of the leading manufacturers is that the item imported is "unfinished brass casting in shape of burners". They have given a very clear and categorical opinion that the item can be used as "burner in gas stove/cooking ranges after doing the required further finishing/processing". They have also indicated the market value of the goods. Ld. DR pointed out that this evidence had not been controverted by the importer or the supplier till date. He also referred to the statements made by the parties namely Anil Goel and Shri Mohinder Singh Malik, wherein there was a clear admission that the seal was changed and amended by contacting the shipping agent. However, there was no allegation of tampering of the seal number. He also pointed out that the differences in the seal number was discovered only on 4.11.1991 and therefore the attempt by the importer to explain that he came to know about the difference in seal number on 1.11.1991 is clearly an afterthought and incorrect. He submits that the supplier by his letter dt. 11.11.1991 which is at page 109 of paperbook had written a letter to the importer expressing his surprise about the mistake in shipment to India of the goods meant for Germany. Pointing out to all these correspondence, Id. DR pointed out to several loopholes in the hand of the party and demonstrated that these correspondences are cover-up and made-up ones and it is without any corroboration. He submits that the Bill of Entry was filed on 28.8.1991 and therefore, it was quite clear that there was four months delay on the part of the importer and supplier to discover about the wrong shipment, which has not been explained at all. The importer got wind about the investigating agencies going to proceed against them and therefore, being fully aware about imported item being brass castings of burners in unfinished forms and not scrap, they have taken a stand of a wrong shipment. He also pointed out that the invoice and certificate of origin is dt. 3.9.1991. If there was a confusion in the shipment to Germany and India, then the supplier would not have remained silent for so long a period till the goods were sent for examination. Therefore, he submits that the importer imported "brass castings of burners in unfinished condition" and misdeclared the same as brass scrap "Honey" in order to take the benefit of the notification and availed duty benefit to a huge extent of Rs. 30 lakhs and above. He also pointed out that the material is not brass scrap and it does not come within the definition of scrap appearing in Section XV of the Customs Tariff Act. He pointed out to the definition of "Honey brass scrap" as per NARI/ISRI specifications and submitted that for a material to be shown as 'brass scrap honey' then the entire material should consist of brass castings, rolled brass, rods, brass, tubing and miscellaneous yellow brasses, including plated brass which should be free of manganese bronze, aluminium bronze, unsweated radiators or radiator parts, iron excessively dirty and corroded materials. In the present case, the item is not in such a nature and therefore, it is clear that the supplier and the importer colluded together to misdeclare the goods and clear the same as "Scrap". Therefore, he submits that the entire finding of the Collector is totally wrong on all issues. He also pointed out that the Collector had erred in rejecting the evidence and granting re-export. He also pointed out that the Collector had seriously erred in holding that there had been no sale in the matter. He also pointed out to the declaration in the Bill of Entry and about their deliberate attempt in misdeclaring the same. He pointed out that the importer was duty bound to have declared the goods correctly. He also pointed out that the other Directors had deliberately evaded summons and had not explained their conduct to the authorities. He also pointed out that the supplier's certificate from M/s. Petro Brass Factory is totally fabricated evidence for the reason that it is difficult to believe that 45 m.t. of brass castings of burners in unfinished conditions could be considered as rejects from a factory. It is pointed out that no factory would clear such huge extent of goods as rejects. He also pointed out that there was a discrepancy in weightage of 10 tonnes out of 45 tonnes and this itself clearly shows about the intention of the importer to misdeclare and clear the goods. He submits that the brass castings of burners in unfinished condition is not an OGL item and it is a licenced commodity. Therefore, it is his submission that it is not a case for re-export but a case for absolute confiscation and for imposition of penalty.

15. In the case of Supreme Electronics & Codetonic 1994 (55) ECR 600 cited n connection with judgement in the case of Sampat Raj Duggar the facts were totally at variance with the facts in the present case. In that case, exporter had not claimed the ownership of the goods nor they had asked for re-shipment. In regard to that case, the appellants stand had been changing. In the present case, right from the beginning the supplier had claimed that a wrong shipment has been made and written to the respondent in India to re-export the goods. The case of Supreme Electronics, therefore, has no relevance to the present case. In fact, the facts are quite the reverse.