METALMAN INDUSTRIES LTD Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE appeal is directed against confiscation of a consignment of 112.310 MT of Tin Plate Waste Waste sought to be cleared by the appellants vide bill of entry No. 6020, dated 14 -6 -1999. The impugned order confiscated the goods for violation of Sections 111 (m) and 111(d) of the Customs Act and gave the appellants an option to redeem them on a payment of Rs. 10 lakhs. A penalty of Rs. 5 lakhs was also imposed. The grounds for confiscation are that the weight of the consignment was misdeclared (as there was an excess quantity of over 9.5 MT) and that the goods had been mis -declared as tin waste strips in sheets and coil form while part of the goods only were strips and coil and the remaining were sheets. The order also holds that strips were eligible to be imported only at floor rate of US 545 PMT as against the import value of US 288.55.

(2.) THE appellants' explanation in defence, before the Commissioner as well as in the present appeal, is that the quantity covered by bill of entry 6020, dated 14 -6 -1999 was only a small part of a total import of about 1550 MT covered under the same order of May, 1999. They submit that the sheets found in the present consignment actually belonged to the part of the order which had earlier been cleared under bill of entry No. 6016 of the same date which was for tin plate waste waste in sheets and coil form. The excess weight also has been explained as the result of an equal quantity cleared short under the other bill of entry No. 6016. It has also been submitted that the clearance under bill of entry No. 6016 was under an Advance Licence and that imports under Advance Licences are not subject to floor price restrictions. Thus, in sum, the explanation of the appellants is that the excess quantity as well as the sheets being found in the consignment described as strips belong to the consignment which had been cleared earlier and the discripancies are the result of mix -up between quantities cleared under the two bills of entry.

(3.) DURING hearing, the learned counsel of the appellants took us through all the relevant documents like purchase order, bills of lading, examination report. He submitted that the full quantity ordered by the appellants arrived India in the same vessel. Two bills of lading were prepared by the shipping agent only for convenience. Bill of lading 43744 (pertaining to B/E No. 6016) described the goods as "Tinplate Waste Waste in Sheets/Coil Form, Bright/Matt Finish, Thickness 0.5MM and Thinner" while the other bill of lading 63570 (the import under adjudication) described the goods as "Tinplate Waste Waste Strips in Sheets/Coil Form". He submitted that sheets contained in the consignment sought to be cleared under bill of entry 6020 related to the consignment already cleared under bill of entry No. 6016 and an equal quantity of strips got cleared in place of sheets under the earlier bill of entry 6016. He also submitted that the examination report has shown that the consignment sought to be cleared under bill of entry 6020 was a mixed consignment of 37 Pallets of strips and 75 Pallets of sheets. He, therefore, submitted that treating the entire consignment as of sheets and confiscating the entire goods for mis -declaration was not justified at all. He submitted that 37 Pallets of strips found in the consignment was in accordance with the declaration and strips were not covered by the floor price restrictions also. Therefore, this part of the consignment was not offending at all. The learned counsel also submitted that the declaration in the bill of entry was Tin Plate Waste Waste Strips and Sheets in Coil Form. This description covered both strips and sheets, as it is well known that sheets and strips are different products covered by different sub -headings of Customs Tariff. Therefore, the allegations of misdeclaration was not well fonded. The counsel also submitted that the penalty and redemption fine are excessive and have been fixed high only because of the Commissioner holding that the entire consignment was liable for confiscation.