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116 EXCISE LAW TIMES [ Vol. 372

ment containing beef were held to be liable for absolute confiscation under Sec-
tion 111(n) of the Customs Act. As the food supplements and paper were re-
leased provisionally observed that as the goods are not produced for confisca-
tion, under Section 125, these goods are not available for confiscation, though
they are liable for confiscation. The bank guarantee furnished was ordered to be
appropriated towards redemption fine that could have been imposed on these
goods upon confiscation. The duty determined recoverable from the appellants,
M/s. Balaji Oversees and further appropriation of the amount already paid for
Rs. 6,60,790/- was ordered. A penalty of Rs. 10 crores was imposed on the appel-
lant, M/s. Balaji Oversees under Sections 112 and 114AA of the Act and similarly
penalty of Rs. 5 crores was imposed on Mr. Kshitiz Sharma. Further, penalty of
Rs. 12,50,000 was imposed on M/s. Him Logistics under Section 112 of the Cus-
toms Act.
15. Being aggrieved, the appellants are in appeal before this Tribunal.
The Learned Counsel for the appellant states that the allegations made against
the appellant-importers are completely wrong without any basis. The appellant
had mainly ordered for A-4 copier paper and never ordered for food supple-
ment. It is only on account of the mistake on the part of the packing staff of the
exporter/shipper that the goods meant for some other exporter in some other
Country, got mixed up with the goods of the appellant in the process of dispatch.
This fact is supported by the admission in the letter of the foreign supplier
wherein he had sought an apology as well as offer to take back the goods. This
fact was also stated before the court of the Learned CMM Patiala House, New
Delhi. There is no case of misdeclaration on the part of the appellant, there being
a bona fide mistake. As such confiscation of goods and imposition of penalty is
not warranted. The Learned Counsel further states that the so-called admission
of Mr. Khittiz Sharma before the Customs officers was retracted before the
Learned CMM, wherein it has been recorded in the bail order dated 3-3-2016 that
the partner Mr. Khittiz Sharma was detained under unlawful custody and the
statement was forcibly taken by the DRI officials. Further prayer was made to
allow the re-export of the goods, however, the Customs Department did not re-
spond.
16. As the appellant importers had suffered huge loss due to mix-up of
the goods for error on the part of the exporter hence in order to recover the loss
the appellant chose to get the goods under import released on provisional basis
without prejudice to its right of contention that the goods were never in the
knowledge of the appellant, being part of the consignment. That no adverse in-
ference is drawable from the facts.
17. It is further submitted that appellant did not make any wrong dec-
laration in the bill of entry as they were not aware about the wrong shipment
from the exporter. It was only after the Customs authority checked the shipment
upon arrival they came to know about the goods which were not ordered by ap-
pellant/ importer. This is also evident that the appellant Sh. Khittiz Sharma was
personally present on being called by the DRI for examination of the goods on 13
January 2016. Had there been any mala fide intention of the appellant he would
not have presented itself at the time of examination of the goods.
18. The impugned order is also bad on the ground that the order of
confiscation is based on the retracted statement of Sh. Khittiz Sharma. The fact of
retraction is evident from the order sheet dated 13 January 2012 from the Court

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