AMBICA IMPEX Vs. COMMISSIONER OF CUS., BANGALORE

JUDGEMENT

(1.) AFTER hearing both sides, in this appeal, filed against the order -in -appeal passed by the learned Commissioner (Appeals), upholding the order of the Additional Commissioner rejecting the advance licence produced for the import of the goods which were ordered to be confiscated under the provisions of Section 111(m) of the Customs Act, 1962 and he also ordered raising the value of the goods from USD 400 to USD 500 and imposition of penalty of Rs. 25,000/ - on the importer under Section 112 of the Customs Act, after coming to the following finding....... Let me first examine whether the importers possessed a valid import licence for import of goods, Advance Licence No. P/K/2074374/C/XX/10/B/94 produced by the appellant permits importation of ACRYLIC PLASTIC SCRAP CUT PIECES CUTTINGS OFF CUTS WITH IMPURITIES LIKE POLYETHYLENE PAPER GASKET, OTHER COMPOSITE WASTES AND OTHER COPOLYMER. The physical examination report in the Bill of entry reads as under The goods are not acrylic plastic scrap, these are not cut pieces, cuttings, off cuts with impurities, no impurities like polyethylene paper gasket and other composite wastes were seen with the goods. The goods are new Acrylic Plastic sheets cut to various sizes and these are new wrapped in plastic wrapper. Hence it is crystal clear that the said goods undoubtedly are not covered under the said import licence which permits import of acrylic plastic scrap only. Besides as the examinations report clearly revealed the goods were new and covered in plastic wrapper. In the normal course of trade it is inconceivable that scrap will be dispatched duly packed in plastic wrapper. Therefore, it should necessarily be held that the Addl. Commissioner correctly gave his findings that the Advance licence cannot be accepted and goods have to be assessed to normal customs duty.

(2.) WE find that it is an admitted position that sheets are not defined in the EXIM Policy. The Description on the licence produced, permits the importation of ACRYLIC PLASTIC SCRAP CUT PIECES CUTTINGS OFF CUTS WITH IMPURITIES LIKE POLYETHYLENE PAPER GASKET, OTHER COMPOSITE WASTES AND OTHER COPOLYMER. The goods as reported by the Customs Commissioner have been found to be The goods are not acrylic plastic scrap, cut pieces cutting offcuts with impurities. No impurities like polyethene paper gasket and other composite wastes were seen with goods. The goods are new acrylic plastic sheets cut to various sizes and these are new, wrapped in plastic wrapper. These are clearly not covered by the licence No. 2075349/22 -3 -95. Samples of the goods were also drawn at the time of examination.

(3.) WE find that as regards the value, the comparison is being made with the import of plastic sheets made in May, 94 at USD 500 from Japan and USD 490 from Korea while the subject imports have been made on 14 -9 -95. Since we find that the goods under import are cut pieces of new acrylic sheets they can be considered off -cuts and covered by the licence. 4.The value is being compared with sheets imported almost 11/2 years earlier. Since imports of April, 94 cannot be considered to be imports of comparative goods at about the same time as the imports made in the present case are at around September, 95, we find no reason to uphold the enhancement of value. 5. When we find that the off cuts or remnants of cut new sheets are covered and we find no reason in mis -declaration of value, we cannot uphold the liability for confiscation under Section 111 (m) of the Customs Act, 1962 as arrived at by the lower authorities. The confiscation is therefore set aside. 6. Once we find that the goods are not liable for confiscation and the values are not found to be misdeclared and the goods are covered by the licence produced, the penalty as arrived at under Section 112 is not called for. In view of our findings, the order is set aside and the appeal allowed.