ISHWAR IMPEX Vs. CESTAT, CHENNAI

JUDGEMENT

(1.) This appeal by the importer is directed against the Final Order No. 1253 of 2010, dated 10-12-2010 [: 2011 (266) E.L.T. 50 (Tri. -Chennai)] passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. The appeal has been admitted on the following substantial questions of law:

(2.) We have heard Mr. Joseph Prabakar, learned counsel appearing for the appellant and Mr. P. Mahadevan, learned counsel appearing for the revenue. On a bare perusal of the facts in issue, it is evidently clear that the plea raised by the appellant lacks bona fide. We are convinced to say so having taken note of the fact as noticed by the original authority as well as the Tribunal. The adjudicating Commissioner ordered confiscation of the goods, but allowed Sandip Exports Limited to redeem the same on payment of redemption fine and penalty. The penalty of Rs. 8,00,000/- imposed on Sandip Exports Limited was set aside by the Tribunal by Order dated 9-10-2007, which has become final. As regards the claim of the appellant, it was observed that they were nowhere in the picture at the time till the investigation was started by the authorities on 7-1-2003 and the statements were recorded from the Director of M/s. Sandip Exports Limited. The appellant appears to have come into the picture after nearly a year i.e., on 4-12-2003 by producing certain documents said to have been given by the foreign supplier requesting for amendment of the import manifest. Such request for amendment was made by the appellant on 12-12-2003. As rightly pointed out by the Tribunal, this claim of the appellant was being made after the Customs authorities detected the fraudulent attempt to clear the very same goods without payment of duty under the advance licence scheme, to which the Sandip Exports Limited were not entitled to. After noticing the facts, the Tribunal confirmed the Order passed by the Commissioner ordering confiscation. We agree with the reasons assigned by the Tribunal while confirming the Order passed by the adjudicating authority. As regards the claim of the appellant herein, in our view, the observations made by the Division Bench of this Court in C.M.A. No. 1028 of 2007, dated 11-11-2009 clearly stares at the appellant. On facts, the original authority found that there was no relinquishment of goods by the original buyer and there could have been no such relinquishment, more so, when the Customs authorities have already seized the goods for violation of conditions of advance licence. The claim made by the appellant was after long lapse of time, by then the property was vested with the Government. Learned counsel for appellant pointed out that the Tribunal in Paragraph No. 7 of the Order has referred to Section 48 of the Act and the said provision has absolutely no relevance. In our view, the misreading of the observations made by the Tribunal has led to such a ground being raised by the appellant. The Tribunal has referred to Section 48 of the Act to state that it contemplates clearance on import of goods within thirty days from its landing and this applies to the person who filed the bill of entry on 8-9-2003 viz., Sandip Exports Limited. Therefore, the Tribunal has not committed any error in referring to Section 48 of the Act while taking note of the conduct of M/s. Sandip Exports Limited. So far as the claim made by the appellant the Tribunal noted that the appellant made its claim in December 2003 only after the offence was detected by the Customs Authorities and the goods were seized. That apart, the Tribunal also set aside the penalty imposed on M/s. Sandip Exports Limited and therefore rightly pointed out that there would be loss of public revenue if the appellant is allowed to clear the impugned goods on payment of normal duty and only on normal redemption fine of Rs. 2,00,000/- as ordered by the Tribunal earlier, which was set aside by this Court in C.M.A. No. 1028 of 2007. In the light of the findings recorded by this Court in C.M.A. No. 1028 of 2007, dated 11-11-2009, more particularly in Paragraph Nos. 7 and 8, the appellant has not made out any case while interfering with the order passed by the Tribunal. Accordingly, the appeal fails and is dismissed. The questions of law framed are answered against the appellant. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.