SYED JALAL IFTEQAR Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THESE appeals are against the Order -in -Original No. 8/97, dated 15 -7 -1997 passed by the Commissioner, wherein he has absolutely confiscated a number of 3260 spectacle frames after accepting the value of Rs. 27,51,167/ - alleged in the show cause notice. He has also imposed penalty of Rs. 15,00,000/ - each on both the appellants under Sections 112(a) and (b) of the Customs Act.

(2.) HEARD Sri B. Kumar, learned Senior Advocate and S/Shri Satish Sundar and Haja M. Gisti, learned Advocates for the appellants and Sri S. Kannan, learned DR.

(3.) THE learned senior Advocate submits that the facts of the case briefly are that on 29 -10 -1995, the appellant Sri Jalal Ifteqar landed at Hyderabad airport carrying 3260 numbers of spectacle frames in three suitcases. He had declared that he had brought 1500 spectacle frames and after Customs examination the quantity found was 3260 numbers. In his statement recorded on 29 -10 -1995, Sri Ifteqar submitted that the spectacles had been brought for one Sri Inayatullah, who is also an appellant in this case. Consequently, the business premises of Sri Inayatullah at Hyderabad, wherein he dealt with retail trading and spectacle frames, was searched. During the course of the search, the officers recovered proforma invoice dated 6 -9 -1995 issued by Al Jabor Vision Technology of Doha. Sri Md. Inayatullah has submitted on record that during his visit to Doha earlier he had contacted that company for the purchase of the said items and received the proforma invoice on his return after 6 -9 -1995. The learned Sr. Advocate submits that the statement dated 30 -10 -1995 of Sri Md. Inayatullah is in tune with the earlier statement of Sri Jalal Ifteqar and that nothing incriminating was found when their premises were searched. Based on these facts, the learned Sr. Advocate argues that the Order -in -Original errs in absolutely confiscating the goods, in levying the heavy penalties and in adopting the value of the said goods as Rs. 27,51,167/ -. He submits that since the goods were declared on arrival by the passenger albeit 1500 in quantity, therefore, there was no intention to smuggle the same under the nose of the Customs officers without payment of duty etc. as legally applicable. He further submits that the items spectacle frames are not notified under item 123 of the Customs Act or Notification issued therein and therefore, the order absolutely confiscating the same is both harsh and illegal. In this respect, he cites the decision of the Hon'ble Supreme Court in the case of Hargovind Das K. Joshi and Others v. CCE and Others as reported in 1987 (2) SCC 230, wherein the Hon'ble Apex Court modified the decision of the Hon'ble Tribunal upholding the adjudication order passed by the Additional Collector of Customs regarding absolute confiscation directing that the original authority who addressed himself to the discretion available in law to give an option to the appellants to pay fine in lieu of confiscation, as the item namely zip fasteners would at present be imported freely not being banned items. He submits that in the second place since the passenger declared that he had brought with him 1500 numbers of spectacle frames and because spectacle frames in the Middle East are normally traded in pairs, therefore, he had no intention to smuggle the said goods. The Sr. Advocate also submitted that he had named the owner who was seem to be running spectacle shop and at the initial stage, Sri Md. Inayatullah was in corrobora -tion to the statement of Sri Ifteqar, therefore, there were no mala fides with intent to smuggle the goods impugned, hence the imposition of huge penalty of Rs. 15 lakhs on each was unjustified and totally harsh. The learned senior advocate further concedes that he is not pressing any argument that no import licence was necessary and that the goods were only in baggage quantities or that the import was totally inconsonance with the Import Trade Control Law. The learned Senior Counsel further submits that the adoption of such enhanced value of these goods was totally without any basis because the transaction value thereof was clearly established by the proforma invoice which was recovered by the officers themselves from the business premises of the person to which the goods belonged. In his statement that person namely Sri Md. Inayatullah had also submitted that the said fax was as a result of his earlier visit to Doha, wherein he contacted the foreign suppliers in this matter. The learned Sr. Counsel submitted that in view of the totality of the picture emerging from these corroborated evidences, it was not correct on the part of the Commissioner to have totally brushed aside the said proforma invoice as evidence of the transaction value, which value was also claimed by the present appellants. This claim of one dollar per piece was subsequently explained by Sri Md. Inayatullah as pertaining to further negotiations with the foreign supplier. The learned Sr. Counsel submits that whether the transaction price is taken in terms of the said proforma invoice, if not even lower as claimed by the appellants, it would certainly not have been Rs. 25 lakhs approximately, which is more than 300% of the declared transaction value, as evidenced by the said fax proforma invoice. He further submits that in the Order -in -Original impugned no reasons have been given as to why the said evidence has been disregarded. Therefore, the learned Sr. Advocate prays that the goods be allowed on appropriate redemption fine, level of penalties be reduced substantially to realistic levels and the value be reconsidered in terms of the said fax invoices.