GRAND PRIME LTD. Vs. COMMISSIONER OF CUSTOMS, CALCUTTA

JUDGEMENT

(1.) ALL the appeals are being disposed of by a common Order as all are directed against the same impugned order passed by the Commissioner of Customs, Calcutta, vide which he has absolutely confiscated three consignments of Tussah Silk and one consignment of Silk Fabrics totally valued at Rs. 45,85,291.00 exported by M/s. Grand Prime Ltd. of Hong Kong. Apart from that, penalty of Rs. 1.00 lakh each has and been imposed respectively on Sushil Mundra and Shri Shankar Lal Sharma. Penalty of Rs. 2.00 lakh has been imposed on Shri N.K. Jhunjhunwala and penalty of Rs. 50,000.00 each has been imposed respectively on Shri Binoy Majumder and Shri Deepak Biswas under the provisions of Section 112(b) of the Customs Act, 1962. It may be clarified here that vide the above impugned Order, the Commissioner has also confirmed the demand of Rs. 19,32,572.00 with an equivalent amount of personal penalty under the provisions of Section 114(a) of the Customs Act, 1962 against M/s. Olumpia Exports and also a personal penalty of Rs. 10.00 lakh has been imposed on M/s. Olumpia Exports, on the ground of violation of D.E.E.C. Scheme; but the said M/s. Olumpia Exports have not filed any appeal against the impugned Order challenging the above portion of the Order. Hence no Orders are to be passed on the said portion of the impugned Order confirming demand of duty and imposing penalty upon M/s. Olumpia Exports.

(2.) M /s. Grand Prime Ltd. are the exporter of Tussah Silk and Mulberry Silk in question which have been confiscated by the Commissioner on the ground that the importer, M/s. Olumpia Exports India were found to be fictitious firm on investigation by the D.R.I. M/s. Olumpia Exports had earlier also imported four consignments of Raw Silk by indulging in mis -use of D.E.E.C. Scheme and they were found to be non -existent firm. As such, the Advance Licences issued to the said Firm were subsequently cancelled by the Issuing Authority. The exporter, M/s. Grand Prime Ltd. approached the Commissioner for re -export of the goods in question on the ground that the title of the goods had not passed on to the importer firm and they continued to remain the owner of the goods. For this purpose, they also filed a Writ Petition before the Honble High Court, Calcutta, who vide Order dated 14 -2 -2000 granted time of four months to the Department to decide the fate of the impugned goods in the light of their claim.

(3.) VIDE impugned Order, the Commissioner has rejected the request of M/s. Grand Prime Ltd., the supplier and shipper of the impugned goods, by observing that their claim is primarily on the ground of equity and it is a settled point of law that equity has no relevance to a case of taxation or a tax offence, that renders the offending goods liable to confiscation. He has, further, observed that in a case where the goods had been abandoned by the importer and no offence has been made out, either by Customs or D.R.I., the supplier of the goods may have a legitimate claim in equity over such goods. When a tax allegation has been committed and has been made out by the Department for confiscation of the goods and imposition of penalty on the offender, the equitable right of the owner of the goods cannot nullify the penal liability of such offending goods. With these observations, he has held that he is not in favour of the plea of the supplier of the goods i.e. M/s. Grand Prime Ltd. for re -shipment of the same.