Page 211 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] VALLABH WOOL INDUSTRIES v. COMMR. OF CUS. (EXPORT), NHAVA SHEVA 889

scription of the goods to find out if there was any fraudulent act so as to give ef-
fect to the amendment. During such investigation, it found that appellant-
importer had cleared several consignments of similar nature imported from
China previously and due to such Alert Circular had stopped the practice. Detail
investigation was carried out, show cause notice was issued to the appellant,
matter was adjudicated upon and confiscation order under Section 111(f) with
option for redemption on payment of redemption fine of Rs. 10,00,000/- in terms
of Section 125 of the Customs Act, 1962 with penalty of Rs. 5,00,000/- was im-
posed under Section 112(a) of the Customs Act, 1962. Appellant unsuccessfully
challenged the same before the Commissioner (Appeals) and approach the Tri-
bunal ultimately for relief.
3. During course of hearing of the appeal, Learned Counsel for the ap-
pellant Shri Anil Balani submitted that owing to misdeclaration made by the ex-
porter, appellant had neither released the import documents from the bank upon
payment nor filed bills of entry for release of goods but penalty has been im-
posed on it. Prematurely since cause of action would have arisen after filing the
bills of entry for clearance of goods. He further submitted, with reference to judi-
cial decisions reported in 2018 (359) E.L.T. 593 (Tri. - Del.) in the case of R.S.
Impex v. Commissioner of Customs, New Delhi, reported in 2015 (330) E.L.T. 651
(Tri. - Del.) in the case Maiden Trading Co. Pvt. Ltd. v. Commissioner of Customs
ICD, TKD, New Delhi and other case laws to substantiate his stand that bill of lad-
ing is no substitute of bill of entry to substantiate the charge of misdeclaration of
importer consignment only on the ground that bill of lading was in the name of
the appellant for which he was the importer and therefore, the order passed by
the Commissioner (Appeals) is required to be set aside.
4. Learned Authorised Representative for the respondent-department
Ms. Trupti Chavan, in response to such submissions, argued in support of the
reasoning and rationality of the order passed by the Commissioner (Appeals)
and pointed out that the consignment was lying unclaimed for 18 months in the
Customs Custody after the alert was issued and that appellant had misdeclared
goods on previous occasions, during clearance of imported fabrics, for which
order passed by the Commissioner (Appeals) needs no interference by the Tri-
bunal.
5. Perused the case record, it is observed that after alert was issued by
the CIU on 3-11-2008, the goods in question was lying abandoned in the Customs
custody up to 18th June, 2010 till the request for amendment was made by the
Shipping Line. Except the statement of the proprietor of the appellant firm and
Managing Director of the intended importer M/s. Diamond Mink Blankets Ltd.
recorded under Section 108 of the Customs Act, other documentary evidence on
record is available to substantiate that appellant was earlier engaged in misdecla-
ration or undervalued imported goods and not a single reference like bill of entry
number is made to that effect that would provide any detail concerning in-
volvement of appellant in previous occasions. In respect of the consignment un-
der dispute proprietor Mr. Hemraj Jain of appellant firm stated that discrepancy
(in the description) of the product came to its knowledge during interactions
with shipper while enquiring about the documents for which appellant refused
to receive the goods and not honoured the imported documents received by the
bank and verbally over phone informed the matter to the exporter, after which it
EXCISE LAW TIMES  15th June 2020  211