PIONEER BUSINESS ENTERPRISES Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) BY these appeals, the appellants have challenged the correctness of OIO No. 38/2001, dated 31 -12 -2001, by which the 500 nos. of Audio CD Roms and 500 nos. of blank CD Roms have been denied the benefit of exemption under Notification No. 11/97 -Cus. dated 1 -3 -1997 and as a result, the said goods have been directed to be ordered for confiscation by imposing fine of Rs. 3,00,000/ -. There are individual penalties on the importer and the Directors. The Commissioner, in the impugned order, has found that the appellants had not ordered for these goods for import and the same has been sent by mistake. There was no misdeclaration and hence, he ordered for re -export of these goods. The Commissioner has granted the benefit of Notification No. 11/97 -Cus., dated 1 -3 -1997 in respect of large quantity of CD Roms except this quantity. The benefit of Notification was extended as found to be interactive computer software in terms of the said notification. The contention of the learned Counsel is that that these quantities of material had been supplied by mistake and there was no deliberate mis -declaration nor there was any intention to import the same or clear the same. The prayer for export of the same has been accepted even before the order of the adjudicating authority. Therefore, it is submitted that in terms of the Apex Court judgment rendered in the case of Northern Plastic Ltd. v. CCE - 1998 (101) E.L.T. 549 (S.C.) confiscation, fine and penalty is not leviable merely because in a circumstance when the authorities have held that the Notification claimed by them is not admissible. Furthermore, when there was no mis -declaration, fine and penalty is not imposable. The learned Counsel distinguished the judgment relied by the learned SDR in the case of CC, Bombay v. Elephant Oil and Industries Ltd. - 2003 (152) E.L.T. 257 (S.C.) wherein even on re -export of the goods, the order of confiscation and penalty has been upheld as the confiscation was upheld in terms of Section 112 as there was clear mis -declaration and the goods were prohibited ones.

(2.) THE learned SDR relied on the judgment in the case of CC, Bombay v. Elephanta Oil and Industries Ltd. - 2003 (152) E.L.T. 257 (S.C.).

(3.) ON a careful consideration, we notice that the importer had, immediately on preliminary examination, found the impugned goods have not been supplied as ordered by them and prayed for exporting the same. The plea was accepted by the Department and the same was exported. However, the Commissioner, on examination did not find the same goods to be falling within the terms of Notification in question and denied the benefit. However he felt that it is required to be confiscated although the goods are not available for confiscation and imposed fine and penalty. The simple contention of the learned Counsel is that merely because the benefit of Notification is not available to the goods that by itself will not lead to a conclusion that there was mis -declaration and there was attempt to clear the same on that count. He pointed out that the appellants had clearly denied for having ordered for those goods and they had sought for re -export and the re -export was granted. He relied on the judgment rendered by the Apex Court in the case of Northern Plastic Ltd. and on our examination, we find that the ratio of this judgment is applicable to the facts of the case. The fine and penalty cannot be imposed in the present case as there was no mis -declaration, and out of the quantity of 25,000 CD Roms, only and quantity of 500 nos. of Audio CD Roms and 500 nos. of Blank CD Roms were found wrongly shipped in the consignment and were ordered to be re -exported. The revenue has not proved mis -declaration in the matter and hence in terms of the Apex Court judgment rendered in the case of Northern Plastic Ltd. fine and penalty is not imposable and the same is set aside by allowing the appeals.