SAHI ENTERPRISES Vs. COMMISSIONER OF CUSTOMS, NEW DELHI

JUDGEMENT

(1.) M /s. Sahi Enterprises imported 2674 pieces of Video Compact Disc Players (VCD) and 8 cartons of replacement parts for the said VCDs.

(2.) They files a Bill of Entry No. 150822 dated 25.4.2001 at the Inland Container Depot, Patparganj, New Delhi for the clearance of those goods. In the Bill of Entry, they classified these goods under Sub heading No. 8519.99 of the Customs Tariff Act and declared their value as USD 16 per piece. The Customs authorities held the view that the goods were properly classifiable under Customs Tariff Sub heading 8521.90; that they were restricted items under the Import and Export Policy 1997 -2000 and could be cleared only against a specific import licence. The goods were therefore seized. The unit price of the goods was also enhanced to USD 20 by the assessing officer. The appellants that the shipment had started from China on 29.3.2001 and the container was transhipped on 3.4.2001. They also contended that the I.T.C. Policy was declared on 31.3.2001 which was a Saturday that the 1st and the 2nd April being holidays, they came to know of the Policy Circular only on 3.4.2001 by which date the container had already been shipped on board and therefore they could not stop the shipment. They contended that this mistake was beyond their control and was inadvertent. They requested for taking a lenient view. The Commissioner of Customs, I.C.D, Tughlakabad adjudicated the case and vide his Order dated 15.6.2001, he ordered for confiscation of the imported goods totally valued at Rs. 26,75,819.00 under Section 111 (d) of the Customs Act, 1962, but, however allowed the redemption of the same on payment of a fine of Rs. 10 lacs. He also imposed a penalty of Rs. 1 lac on the party under Section 112(a) ibid.

(3.) WE have carefully considered the submissions made by both the sides before us. Admittedly, the imported goods were placed under the restricted list with effect from 31.3.2001. As rightly contended by the ld. SDR for the respondents, the contention of the appellants that the orders of for the imported goods was already placed on the foreign supplier which could not be modified or revoked is not supported by the evidence or record. Further, since there was no irrevocable L.C. opened in respect of the import of the goods, the same could not be allowed clearance under the free import policy prevailing before 31.3.2001. Moreover in the Bill of Entry, under the Heading I.T.C. Licensing etc., the appellants appended, " para 4.1. of EXIM Policy" which related to the O.G.L. goods whereas the impugned goods were rightly to be classified under Heading 852110 09.30 corresponding to which the policy instructions were "Restricted" and permitted to be imported against the licence. Therefore, in view of these clear provisions against the free import of the goods, the appellants have mis -declared the same to be falling under para 4.1 of the Import Policy which relates to the O.G.L. goods only. AS regards the plea of making up of the value, the Bill of Entry dated 7.12.2000 referred to in para 2 (supra) filed by the appellants is also assessed to USD 21.70 per piece. Therefore, the enhancement of the value of the imported goods at USD 20 per VCD Player cannot be questioned. The appeal thus fails on all counts. But however, since there is no margin of profit indicated, in the order passed by the adjudicating authority, we reduce the redemption fine from Rs. 10 lakhs to Rs. 5 lakhs (Rupees five lakhs only).