ULTRA COAT Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This appeal arises from Order -in -Original No. 42/2000 -CAU dated 30.8.2000 (issued on 6.9.2002) by which the Commissioner has ordered for confiscation of 6 Nos. of second -hand machinery imported vide Bill of Entry No. 216699 dated 29.4.99 and Bill of Entry No. 219934 dated 21.5.99 for contravention of Section 111 (d) of the Customs Act, 1962 read with Section 3(3) of Foreign Trade (Development and Regulations) Act, 1992. However, he has given an option to redeem the same on payment of a fine of Rs. 6.12 lakhs. A penalty of Rs. 60,000 has also been imposed on the appellant -importer. The department found the date of Bill of Lading declared as 29.3.99 to show that the shipment was prior to 1.4.99. It was alleged that appellant in order to circumvent the restrictions imposed on the import of second -hand machinery w.e.f. 1.4.99 they had manipulated the date of bill of lading. The date of actual shipment and the actual date of Master Bill of Lading, on ascertainment from the steamer agent, was found to be 4.4.99 and 14.4.99 respectively, and not 29.3.99 as mentioned in the Bills of Lading. The six machines under the above two consignments were detained by SUB on 2.7.99 at the importer's premises, for further investigation, in view of the evidences from the steamer agent that the goods imported into India were in contravention of the ITC policy as it contravened the provisions of Section 111 (d) of the Customs Act. In his voluntary statement, Shri K.V. Prasad, Proprietor of the appellant stated that manipulation of Bills of Lading must have been done by the shipper so that the goods would be accepted by him or otherwise he would have reduced to clear the goods. He stated that he had no intention of, importing in violation of the licence. The department alleged that as per Para 5.3 of Exim Policy 1997 -2002 as amended the import of second -hand machinery was restricted with effect from 1.4.99 and as importers did not have a specific import licence, therefore, proceedings were initiated for the purpose of taking suitable action in terms of provision of law.

(2.) In reply to the SCN, appellants maintained their stand. After due hearing, the Commissioner passed the impugned order. The findings recorded in paras 6 to 11 are reproduced hereinbelow:

(3.) We have heard Ld. Counsel Shri S. Murugappan and Shri A, Jayachandran, Ld. DR for the appellant.