MALAYSIA ARCADE AGENCIES Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THIS appeal arises from Order -in -Original No. 4/03 dtd. 4 -7 -2003 denying the prayer of the appellant to grant the benefit of re -export. It is the contention of the appellant that the ownership of the goods viz, peripherals of computers and dyes, which had been supplied to M/s. National Trading Corporation had not been passed on to them. They had requested the original authority to grant re -export to them which has not been granted to them. The importer had been imposed with penalty in view of the import being regular and goods being confiscable as they require licence. There was also under valuation and penalty had been imposed on the importers Proprietor Shri J.K. Gupta and on another person Shri Bharat Goyal of Rs. 10 lakhs and Rs. 5 lakhs respectively. Both the persons have filed application under KVSS scheme after they had filed appeals before the Tribunal. They had accepted the charge and in terms of the KVSS scheme they had paid the penalties. The contention of the importer is that as the ownership has not been passed on to them they are entitled to have the goods re -exported in terms of the judgment rendered by the Apex Court in the case of UOI v. Sampat Raj Dugar [1992 (58) E.L.T. 163 (S.C.)] and that of the Tribunal in the case of Unisindo Trading Pvt. Ltd. v. CC, Hyderabad [2003 (153) E.L.T. 81 (Tri. -Bang.)].

(2.) LD . Counsel Shri R. Ganesh filed the written submission and also the judgments relied by him and prayed for an order directing the authorities to reexport the same.

(3.) LD . SDR Shri P.M. Saleem submitted that in the case of Sampat Raj Dugar the import had been under valid import licence, therefore the importer having abandoned the goods the Apex Court took the view that the owner was entitled for re -export. The same view was expressed by the Tribunal in the case of Unisindo Trading Pvt. Ltd. (supra). The Tribunal noted that the ownership had not been passed on as the importer was a fraudulent person and unknown one and therefore his right for re -export was upheld. His submission that the Apex Court in the case of CC, Kolkata v. Grand Prime Ltd. [2003 (155) E.L.T. 417 (S.C.)] has held that re -export cannot be ordered where the goods have become tainted and confiscable. It was also noted that the import was contrary to law being without a valid licence and in violation of condition -restriction imposed under the licence. In view of the order of confiscation done by the customs authorities under provisions of Sec. 111(o) and 111(d) of the Customs Act and of the goods having been confiscated the supplier does not have a right to ask for re -export. He submits that same view was expressed by the Tribunal in the case of Peer Chemicals and Metallurgy (P) Ltd v. CC, Chennai [2002 (145) E.L.T. 96 (Tri. Chennai)]. He pointed out that even in this case the importer was a non -existing/bogus company and the supplier had not established his case and re -export was not granted in the matter.