AL SAIF INTERNATIONAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is the second bout of litigation between the parties before this Court The appellant/importer has challenged the order dated 28th June 2011 passed by the Tribunal in Misc. Application Case No. 16/11 in Customs Appeal No. C-353/09 on remand pursuant to direction given by this Court in order dated 11-8-2010 in Customs Appeal No. 14 of 2009 [,: 2010 (260) E.L.T. 27 (Cal.)]. The appellant/importer had sought clearance of import consignment, which was declared as "old and used worn clothing completely fumigated." The said consignment was subjected to physical examination and in the course of adjudication, the Adjudicating Authority found that the goods were misdeclared in respect of weight as well as value and that the same had been imported in violation of the import policy/ inasmuch as, the appellant/importer did not have the requisite restriction for importation. As a result the Adjudicating Authority by order dated 8-9-2008 directed confiscation of the said goods under Section 111(d) and (m) of the Customs Act with an option to the importer to redeem the goods on payment of redemption fine of Rs. 1,70,000/- also imposed penalty of Rs. 58,000/- on the importer under Section 112 of the Customs Act. The said order was accepted by the importer and on the next day the redemption fine and penalty was paid by the importer. Thereafter, on 11-9-2008, Directorate of Revenue Intelligence, informed the Commissioner about the intelligence received by them that the goods declaration under Bill of Entry had been assessed on the basis of Fraudulent information furnished by the importer and the examination of the goods by the departmental officer at the time of assessment was not adequate to unearth such misdeclaration.

(2.) Immediately the Commissioner called for the file and after perusing the same passed it to DRI for further investigation. It appears that DRI subjected the imported goods to a more intensive investigation by bursting the bales and allegedly unearthed misdeclaration of the said goods on the part of the importer resulting in a much higher duty liability in comparison to what had been imposed by the earlier order of assessment. It is apposite to mention that on the basis of new facts discovered in the course of enquiry by DRI a show cause notice under Section 28 of the Customs Act has been issued upon the appellant/importer and the same is pending consideration. Subsequently, the file was sent back to the Adjudicating Authority and the Adjudicating Authority appears to have passed a speaking order of assessment on 16-2-2009 which is claimed to have been communicated to the Commissioner on 24-2-2009. Thereafter, the Commissioner sought to exercise his powers under Section 129D of the Customs Act and by order dated 20-5-2009 passed an order authorizing appropriate officer to apply for review the aforesaid order of assessment dated 8-9-2008.

(3.) Pursuant to such order, a review application was filed on behalf of the Customs Authorities before the Commissioner (Appeals) on 27-5-2009. The Commissioner (Appeals) by order dated 28-7-2009 set aside the order of assessment and allowed the review application filed on behalf of the Customs Department. The appellant/importer appealed against such order passed by the Commissioner (Appeals) before the Tribunal and the same was disposed of by the tribunal on 9-11-2009 by a non-speaking order. This came to be challenged before this Court in Customs Appeal No. 14 of 2009 whereby the matter was remanded to the tribunal to decide the issue of limitation first and thereafter to decide on other points.