MANSAROVAR PEARLS Vs. COMMISSIONER OF CUSTOMS, MUMBAI

JUDGEMENT

(1.) The above application for stay of operation arises out of the order -in -appeal passed by the Commissioner of Customs (Appeals), Airport, Mumbai who has upheld the findings of the Joint Commissioner of Customs, that the goods imported viz. fresh water pearls, articles of fresh water pearls and fresh water pearls (worked cultured) were misdeclared regarding description and value and that the goods were liable to confiscation under Section 111(d) of the Customs Act since their import required specific licence for their clearance, which the importers did not produce.

(2.) Learned Counsel, Shri C.L. Bhanot contends that the charge of misdeclaration of the description os not sustainable since the goods were found to conform to the description in the Bill of Entry filed and that the charge of under valuation is also not sustainable as the importers had declared correct value. On the other hand, learned SDR, Shri P.K. Jain submits that there is a clear case of misdeclaration of the description since the invoice covered only 50 Kgs of fresh water pearls, while the goods were found to be fresh water pearls as well as articles thereof, and fresh water pearls (worked cultured). He also submits that the goods were valued by a panel of expert Appraising Officers, Members of Trade Advisory Panel and an independent trader, and the value has been loaded on the above basis, as per Rule 8 of the Customs Valuation Rules, since there were no contemporaneous import of similar goods. Lastly, he submits that the import licence produced by the importer did not fully cover all the goods and raw pearls valued at Rs.74,935/ - required a specific import licence which was not produced and, therefore, the goods have been rightly confiscated. He, therefore, opposes the grant of stay of operation of the impugned order.

(3.) We have carefully considered the rival submissions. The issues of misdeclaration of description/value and requirement of specific import licence are contentious and can be considered only when the appeal is taken up for hearing. In our view, it is not a fit case for grant of stay of operation or for grant of the prayer that the goods may be released immediately on furnishing duty and fine on the declared value and 100% bank guarantee for the differential amount. Having regard to the totality of facts and circumstances, we direct the applicants to deposit Rs.10,000/ - out of the total penalty of Rs.1 lakh within two weeks from today and on such deposit, predeposit of balance penalty shall stand waived and its recovery stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and rejection of the appeal without prior notice.