RAMA AGRO CHEMICAL INDUSTRIES Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THESE are six appeals against three Orders -in -Original namely 263/94 dated 22.09.94 and 269/94 dt. 26.09.94 and 264/94 dt. 22.09.94 passed by the Commissioner of Customs. Since the issue involved is common to all the three orders impugned, therefore, the matter has been taken up together. There are three other appeals by one Sri J.S. Mehta pertaining to penalties imposed upon him under the aforesaid three Orders -in -Original. These are also therefore, being considered vide this order.

(2.) BRIEFLY , the issue concerns import of Borax Penta Hydrate Neobor from M/s. Samaha Holdings Ltd., London, though the goods were shipped directly from the manufacturers in USA. One of the appellants namely M/s. Borax India Ltd. had established an irrevocable Letter of Credit through the concerned bank on the said U.K. supplier on 21.08.1993 for supply of 2000 MTs of the said item at 298 US per MT FOB Los Angeles (USA). Before the shipment was made the foreign suppliers approached the appellants and offered price reduction provided the total quantity of 5000 MTs. was imported as a package deal. Since the offer was lucrative, the appellant Sri J.S. Mehta, who was a Director in M/s. Borax India Ltd. and the other company M/s. Rama Agro Chemical Industries (two of the appellants before us) and a relative of partners' of third appellants namely M/s. Akshay Industries, negotiated with the foreign supplier in this regard. The other two appellants namely Rama Agro Chemical Industries and Akshay Industries having show interest in importing the remaining 3000 MTs. of the same goods at these prices, this decision was conveyed by Sri J.S. Mehta to the foreign supplier. Accordingly, the Letter of Credit opened by M/s. Borax India Ltd. was amended on 27.09.93, though the goods had been shipped on 16.09.93 in view of the confirmation received by the foreign supplier from Sri J.S. Mehta in the case of all the three importers. The entire quantity of 5000 MTs was shipped by same vessel on 16.9.93 namely M.V. Ranger to India in the following proportions: -

(3.) HEARD S/Sri R. Raghavan and T.S. Balasubramanian, learned advocates for the appellants and Sri S. Kannan, learned DR.