SHRI T.S. KAMALAKANNAN, Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THESE appeals are against an order of the Commissioner of Customs (Trichy). The operative part of the impugned order reads as under:

(2.) FOLLOWING penalties are imposed under Section 112 of the Customs Act:

(3.) AFTER examining the records and hearing both sides, I find that the confiscated Mobile Phones were released to M/s Max Telelinks on payment of the redemption fine fixed by the Commissioner and that their request for permission to re -export the goods does not survive. Ld. Commissioner has confiscated the goods under Section 111(d), (i) and (m) of the Customs Act. But he has not spelt out the reasons for confiscation with reference to these provisions. What appears from the impugned order is that ld. Commissioner has heavily relied on the statements of S/Shri Alumkulam Satheesh and T.S. Kamalakannan. Though the Commissioner was right in rejecting the belated retractions of these statements, he could not establish corroboration between the 'confessional' statements of Shri Alumkulam Satheesh and the plain facts of the case. It appears from the facts on record that M/s Max Telelinks had simultaneously imported 2 consignments, one consisting of "Computer Cabinets with SMPS" and the other consisting of "Nokia 3315" Mobile Phones with accessories. The Bill of Entry dated 19.11.2003 was filed for clearance of the "Computer Cabinets with SMPS" and the other Bill of Entry dated 20.11.2003 was filed for clearance of the Mobile Phones. Each Bill of Entry was accompanied by the supplier's invoice, copy of the Air Waybill etc. Both the goods were supplied by M/s Airtel Telecom (Dubai) EEC, whose Invoice No. 52/110/1692 dated 14.11.2003 issued to M/s Max Telelinks covered 37 pieces of "Computer Cabinets with SMPS" of one model and 10 pieces of "Computer Cabinets with SMPS" of another model. This description and quantity of the goods mentioned in invoice No. 1692 were found to tally with the description and quantity of goods declared in one of the 2 Bills of Entry. The other invoice (No. 52/110/1693 dated 14.11.2003) issued to M/s Max Telelinks by M/s Airtel Telecom (Dubai) covered 1000 pieces of "Nokia 3315" Mobile Phones. The description and quantity of the goods mentioned in this invoice squarely tallied with the corresponding particulars declared in the other Bill of Entry. Conspicuously, however, the two invoices contained identical entries with regard to Air Waybill. Both the invoices mentioned "Airway Bill No. FSS 010358 dated 14.11.2003". Apparently, it was this entry in Invoice No. 52/10/1692 that generated doubts in the minds of the Customs officers. Had Air Waybill No. 11488 been mentioned instead of Air Waybill No. 10358 in invoice No. 52/110/1692, there would have been hardly any room for doubt. Ld. Counsel for Shri Alumkulam Satheesh submitted that the wrong mention of Air Waybill particulars in invoice No. 52/110/1692 relating to "Computer Cabinets with SMPS" was a mistake on the supplier's part. This has been the consistent stand of M/s Max Telelinks. I am inclined to accept this explanation of the importer inasmuch as the Department has no ease that, if Airway Bill No. 11488 is substituted for Air Waybill No. 10358 in invoice No. 52/110/1692, still there will be discrepancy between entries in the various import documents pertaining to the goods imported by M/s Max Telelinks. A mere correction of Air Waybill number in the relevant invoice would obliterate the confusion. In the circumstances, it cannot be said that there was misdeclaration of Mobile Phones as "Computer Cabinets". The impugned order does not state cogent reasons for holding that Mobile Phones were misdeclared as "Computer Cabinets". Ld. Commissioner has found in his order, ".. actually the goods imported may be 'some high valued - high duty items' and substitution of high valued cargo, (possibly Cell phones) by locally procured cabinets has taken place during transshipment from Chennai to ICD, Pondy ..". I have not come across any evidence supporting this finding. In the absence of misdeclaration, the Mobile Phones were not liable to confiscation under Section 111 and consequently, no penalty was liable to be imposed on the importer.