KISHAN LAL CHAWALA Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) HEARD Sri G.K. Sarkar, Advocate assisted by Sri Saurabh Yadava, learned Counsel for the accused -applicant and Sri Dipak Seth, learned Counsel for the Union of India and perused the relevant documents on record.

(2.) THE accused -applicant is involved in Case Crime No. 29 of 2010, Under Sections 132 and 135(1)(A) & (C)/and 104 of the Customs Act, 1962, DR1, Gomti Nagar, Lucknow.

(3.) SUBMISSION of the learned Counsel for the accused -applicant is that the accused -applicant is a bona fide importer having IEC issued by the DGFT by the competent authority under the Foreign Trade (Development and Regulation) Act, 1992. It is further submitted that earlier the firm M/s. Ruby Impex was in the name of Vicky Chawala, the son of the accused -applicant and the accused -applicant was the authorized signatory of the said firm and on 12 -4 -2010 his son Vicky Chawala has transferred the firm in the name of accused -applicant and since then he has become the proprietor of the firm M/s. Ruby Impex. The accused -applicant was not the importer of the goods during the relevant time. It is also submitted that the accused -applicant at best may be alleged only in respect of one consignment for which Bill of Entry has been filed and the alleged violation of Section 111(m) and 111(f) of the Act cannot be sustainable in the absence of any Bill of Entry filed in respect of remaining 7 containers. The accused -applicant has filed only one Bill of Entry on 29 -12 -2009 in respect of one container. The said container was examined by the Customs Officers at ICD Loni and were allowed clearance after proper assessment to assessable value of Rs. 16,98,595/ - and custom's duty of Rs. 3,16,347/ - on the goods. The goods in the import consignment was not loaded under the supervision of the importer or even by the exporter. The same was loaded directly from the stock yard and his inspection certificate in this regard has been issued by the DGFT (Govt, of India) approved authority (SI. No. 98 of the list of approved Agencies). Hence, the wrong description of imported goods cannot be attributed to the accused -applicant. The wild allegation of organized syndicate for importing prohibited goods like Lead Scrap, Live Cartridges and Empty Cartridges casings are beyond the evidences on record. The said goods, at best liable to confiscation under Section 111(d) of the Customs Act and for which the department could have passed adjudication order by imposing redemption fine and penalty for releasing the goods on payment of duty as had been done regularly in similar cases. In fact the customs authorities are well aware being confiscate of import of scrap in which many times cartridges, shells etc. are loaded by the exporters and in such cases no action has been initiated under the Arms Act. In this particular case for the best reasons known to them, the Department has also not taken any action against the accused -applicant under the Arms Act. It is also submitted that to attract the provisions for the punishment under Section 135(l)(i)(A) of the Act, the goods should have market value exceeding rupees one Crore. But the accused -applicant at best can be implicated for one container which is not valued for more than 20 lacs. It is also submitted that it is a well settled law that there cannot be a seizure or confiscation of goods for which reasons for amendment of IGM has already been made and pending. The provisions of Section 46 of the Customs Act requires Bill of Entry to be filed by the importer and if he does not file any Bill of Entry, the Department is at liberty to take action under Section 48 of the Customs Act. But there is no power with the Customs Officers to force anybody to file Bill of Entry. If the Officers are of the bona fide plea that there has been a violation of the Arms Act, the matter should have been forwarded to the concerned police authorities to take appropriate action under the Arms Act. But the so -called live cartridges were never forwarded to the police for investigation. The goods were cleared by the proper Officer of Customs under the provisions of the Customs Act, 1962, under a proper B/E on payment of appropriate duty and therefore the seizure of the goods and arrest of the accused -applicant is arbitrary, unreasonable and illegal. It is further submitted that the exporter of the goods in USA by the letter dated 8 -1 -2010 had intimated that the containers detained by the DRI as mentioned -above were meant for other destination but not for present accused -applicant. Hence, the exporter requested for return of the said containers. On receipt of this letter, the accused -applicant through his Advocate requested the Customs authorities verbally to allow re -export and change in IGM. But the customs authorities declined to such request and even decline to take request through letter in this regard and ultimately on 9 -3 -2010 the Advocate sent the request by post. In the event of exporter's request for returning of the goods for which no payments were made by the accused -applicant, so it was not justified on the part of the DRI to seize the remaining 7 containers. The permission of re -export of the goods has not been agreed by the Customs authorities and they themselves examined the containers. It is further submitted that until Bill of entry is filed declaring the import of goods, there cannot be any allegation of mis -declaration and hence, the goods cannot be confiscated under Section 111 (d), & lll(m) of the Customs Act, 1962. Further the importer is required to file Bill of Entry under Section 46 of the Customs Act, 1962, but for that no time limit is prescribed and he cannot be forced upon to file B/E which the importer does not want to clear. It is further submitted that the accused -applicant has been falsely implicated in this case on the basis of fabricated and concocted story. The offences so alleged against the accused -applicant do not attract the case under Section 135(1)(A) & (C) and 104 of the Customs Act rather the nature of offence falls under Section 135(i)(ii) of the Act for which imprisonment prescribed is upto three years term and the said offence is bail able offence. The accused -applicant has received pre -shipping Inspection Certificate issued by the Overseas authority in terms of Para 2.32(i) of the Hand book of Procedure (Vol. 1) in respect of the container for which Bill of Entry has been filed. It is further submitted that the Panchnama dated 16 -3 -2010 when the Container No. HLXU 2208470 was first examined on 12 -3 -2010, revealed only one live cartridge. The said container was re -examined by the department on 12 -7 -2010 and carried on 13th, 14th, 15th, 16th, and 17th, July, 2010 in this regard, it is to be noted that only one Panchnama has been drawn on 17 -7 -2010 for which the proceedings took place on six consecutive days and in the said proceedings neither the applicant nor any of his representative was present. It is further submitted that the Panchnama does not mention the presence of any expert authority like Forensic Expert or officers of CRCL, then who has certified the goods to be live cartridges it is abundantly clear that in any way DRI officers cannot said to be expert to identify the same as 'live cartridges'.