M.V. Ravindran, J.
1. These three appeals are disposed of by a common order as the issue involved in all these 3 cases emanates from same impugned order.
2. The relevant facts that arise for consideration are that the officers of DRI Ahmedabad gathered an intelligence that the appellant herein was involved in evasion of anti dumping duty by resorting to mis-declaration of country of origin in the import of vitrified tiles falling under CTH No.6907. The investigation was conducted and the authorities came to a conclusion that the appellant herein was importing Chinese vitrified tiles on which anti dumping duty was leviable. It was also concluded that the Bills of Entry which were filed in the name of M/s Shobha Plastics Pvt.Ltd, M/s H.V. Ceramics, M/s PFZ Corporation were incorrect in as much as these three units were dummy. After causing various verifications and recording statements of various persons, show cause notice was issued to the appellant and others for demand of the anti dumping duty, interest thereof and imposition penalties. The adjudicating authority, after considering the replies filed by the various persons and the appellant herein and after following the due process of law, confirmed the demands raised along with interest and imposed penalties on various persons. In the first round of litigation, the Bench set aside the impugned order and remanded the matter back to the lower authorities vide Final Order No.A/789-792/WZB/AHD/2009, by holding that the adjudicating authority cannot confirm the duty and impose penalties jointly and severely against the two persons. The adjudicating authority, in the impugned order, in de-novo proceedings, after considering the submissions made by the appellant holding that the appellant is importer, confirmed the demands raised in the 3 show cause notices, ordered for recovery of interest and also imposed equal amount of penalties on the appellant and imposed various penalties on other appellants. We are not concerned with the other assessees/ individuals as no appeals have been listed even if they are filed. Hence, we are concerned with of appeals filed by Shri Nalin Z. Mehta.2.1.The ld.Advocate appearing on behalf of the appellants would take us through the impugned order. It is his submission that in Para 31.3.1, the adjudicating authority has held that the appellant herein had planned for import of Chinese vitrified tiles through Malaysia with the help of one Shri Danny of Singapore by forging/obtaining fake certificate of origin from Malay Chamber of Commerce, instructed one Shri Jayesh Mehta to act as CHA and approach M/s Shobha Plastics Pvt.Ltd. and M/s H.V. Ceramics for using their IEC code. It is his submission that the adjudicating authority has recorded that all the finances relating to import consignments such as remittance abroad, Customs duty etc required for clearances of imported consignments were arranged by the appellant herein; it is his submission that the said findings of the adjudicating authority are totally incorrect and brings to our notice that the statement recorded by the authorities of the appellant on 07.12.2006. He would also submit that the entire case of the Department is that the appellant herein having financed for import of consignment of vitrified tiles of Chinese origin and sought to evade anti dumping duty by creating bogus certificate of origin needs to be tested on the definition of importer as given in Section 2(26) of the Customs Act, 1962.
After reading of said definition, ld.Counsel would take us through the case laws which have interpreted the said provision of Customs Act, 1962. He would rely upon the following decisions:-
i). Bimal Kumar Mehta Vs CC Mumbai 2011 (270) ELT 280
ii). Dhirubhai N. Sheth Vs. CC Bombay 1995 (75) ELT 697
iii). Ashwin Doshi Vs CCE Goa 2004 (173) ELT 488
iv). J.B. Trading Corporation Vs. UoI 1990 (45) ELT 9 (Mad.)
v). Chaudhary International Vs CC Bombay 1999 (109) ELT 371
vi).Hamid Fahim Ansari Vs CC Nhava Sheva 2009 (241) ELT 168 (Bom)
vii). Proprietor, Carmel Exports and Imports Vs CC Cochin 2012 (276) ELT 505 (Ker.)
3. After taking us through the above said case-laws, he would submit that Hon'ble High Court of Kerala, Madras and Bombay have interpreted the definition of importer as given in Section 2(26) of the Customs Act, 1962 as a person who holds out to be an imported or owner. He would submit that on this point itself, the impugned order needs to be struck down, hence we are not making any further observations on various other issues.
4. Ld.Departmental Representative, on the other hand, would take us through the brief facts of the case. He would submit that the appellant herein had colluded with one Shri Danny of Singapore for evasion of anti dumping duty levied on vitrified tiles originating in or imported from China. He would submit that the appellant herein himself has, in his statement, accepted that he had, in fact, discussed the modus operandi of import of such tiles and evading anti dumping duty. It is his submission that the appellant then sourced the market for availability of IEC code from the persons who were in dyre need of finances and located M/s Shobha Plastics Pvt.Ltd. and M/s H.V. Ceramics; and arrangement from Shri Danny of Singapore, M/s PFZ Corporation was also roped in for evading the anti dumping duty. He would submit that M/s Shobha Plastics Pvt.Ltd. and M/s H.V. Ceramics for the money offered by the appellant had given their IEC code and allowed the imports of vitrified tiles by evading anti dumping duty on the provocation of the appellant herein. It is his submission that the hazard created by the appellant need to be gone into and it has to be seen that the appellant herein is the financer for import of vitrified tiles and hence needs to be held responsible for the evasion of anti dumping duty. It is his submission that the issue was referred to Malay Chamber of Commerce who has specifically stated in their response that M/s Synergy Tradecom is a registered trader and not a manufacturer and the certificate given by them for the tiles which were imported seems to be incorrect. He would submit that the recent judgment of Hon'ble High Court of Karnataka in the case of Ramesh Solanki Vs CCE Bangalore 2012 (278) ELT 316 (Kar.) has now settled the issue that person who is financing the operation needs to be held as an importer.
5. We have considered the submissions made at length by us and perused the records. The entire case of the Revenue in confirming the demand against the appellant along with interest, imposing equal amount of penalty is based on as to who is the importer as per the provision of Section 2(26) of the Customs Act, 1962.6. In order to appreciate the correct position, the basic facts needs to be stated which are in dispute, as to the bills of entry which are filed with the Customs authorities for the clearance of vitrified tiles along with the complete set of documents were filed by M/s Shobha Plastics Pvt.Ltd., M/s H.V. Ceramics and M/s PFZ Corporation. On perusal of the copies of Bills of Entry produced before us as filed by these assessees, we find that they had specifically stated that they are importer of vitrified tiles coming from Malaysia and have also discharged the Customs duty as has been assessed by the lower authorities. As against the above said undisputed facts it needs to be seen as to who is the importer of the goods as per the definition of Section 2(26) of Customs Act, 1962, which reads as under:
importer, in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer.
7. The above said definition clearly lay down that the importers definition includes any owner or any person holding himself out to be an importer. The adjudicating authority, while coming to such conclusion that the appellant herein is to be adjudged as an importer in Para 31.3.1 has recorded as under:
31.3.1 From various statements of Shri Nalin @ Bakul Zaverilal Mehta, it is seen that Shri Nalin had clearly stated that:
i). It was he who planned the import of Chinese vitrified tiles through Malaysia with the help of Shri Danny of Singapore who was to get the certificate of origin from Malay Chamber of Commerce by forging the documents to show the goods as of Malaysian origin.
ii). He asked Shri Jayesh Mehta to act as a Custom House Agent for clearances of subject tiles to be imported.
iii). It was on his instruction that Shri Jayesh D. Mehta approached Shri Harshadbhai Vadodaria of M/s Shoba Plastics Pvt.Ltd. and Shri Hitesh Parikh of M/s H.V. Ceramics.
iv). The import document in the name of PFZ Corporation were supplied to him by the associate of Shri Danny.
v). All the finances relating to import consignment such as remittances abroad, customs duty etc required for the clearances of the imported consignments were arranged by him.
vi). Shri Harshadbhai Vadodaria and Shri Hitesh Parikh had simply signed the blank documents required for the clearances of the imported tiles.
vii). Shri Harshadbhai Vadodaria and Shri Hitesh Parikh allowed their companies/firms to be used by him (Shri Nalin) on the assurance of commission.
8. It can be seen from the above reproduced findings of the adjudicating authority, we find that the adjudicating authority has totally mis-directed himself for more than one reason. Firstly, we find that in the statement dt.07.12.2006 of the appellant Shri Nalin Z. Mehta, relevant paragraph as to financing of the entire operation reads as under:
On being asked to explain the modus adopted by us, I state that the plan for import of vitrified tiles of Chinese origin by showing the same as of Malaysian origin was hatched two years back with Mr.Danny Singapuri, a Singaporian citizen the owner of M/s Synergy Tradecom, Malasia who was introduced to me by one of my friends Shri Bharatbhai Shah (NRI settled in Singapore), when he (Danny) came to India three years to attend one get together party arranged by Shri Bharatbhai at Mumbai, where I was also one of the invitee. Thereafter, when Mr.Danny again came to India two years back he met me and had offered me to supply vitrified tiles of Chinese origin for sale in India, I accepted that offer as there was very good demand for vitrified tiles at that time and the deal was finalized. At that time anti dumping duty was charged @ 8.28 USD/SQ MT on the import of vitrified tiles of Chinese origin and to avoid this, it was decided to obtain the certificate of origin showing the country of origin as Malaysia and accordingly Mr.Danny has arranged the certificate of origin as Malaysia from Malay Chamber of Commerce. Further, the arrangement for the importation of the goods from Chinese port of Port Klang was also made by Mr.Danny. Thereafter, the goods were loaded from Port Klang to India. It was also decided to get made in Malaysia and our brand name Globe embossed on the vitrified tiles to be imported from China. This was done with an intention to show that the vitrified tiles imported by us were of Malaysian origin and to evade the payment of anti dumping duty chargeable thereon. I also want to clarify that all the financing for the import of vitrified tiles were arranged by Shri Danny. As per the arrangement, Shri Rupesh Shah, employee of Shri Danny in India had given me import documents of the value of Rs.12 lakhs (approx.) in the name of PFZ Corporation, Vapi, Rupesh Shah had also given me Rs.6 to 7 lakhs (approx.) for payment of Customs duty. I had sent the original documents and the amount of Rs.6 to 7 lakhs to Shri Jayesh Mehta at Vapi for payment of Customs duty and get the clearance of vitrified tiles from the Customs. The goods released from the Customs, were immediately delivered to our buyers, the names of whom were mentioned in my statement dt.29.11.2006. We used to take the payment in cash from our buyers. This payment in cash was further used to get release the subsequent consignments of vitrified tiles imported from Shri Danny Synergy Tradecom. On being asked about the details of sales made and payments received in cash from our buyers of vitrified tiles, I state that at present I do not have the said details, however, I undertake to provide the same on reaching Mumbai. (Emphasis provided)
9. It can be seen from the above reproduced paragraph from the statement of Shri Nalin Z. Mehta, he has stated that for the first consignment which was imported, Shri Danny of Singapore has given the finances and said finances were utilized for first consignment and sold in the local market for cash and it was recycled to release subsequent consignments. We find that there is no categorical admission of the appellant herein that he had financed the entire operation, on the contrary it is otherwise. In view of the factual finding hereinabove, we find that the adjudicating authority recording the finding as to the finances relating to import are done by the appellant, seems to be incorrect. It is also to be recorded that investigating authorities have not traced one Shri Danny of Singapore and recorded any statement.
10. Secondly, in our view, the definition of importer as mentioned in Section 2(26) of Customs Act, 1962 would not cover the appellant, as it is undisputed that the appellant had not filed any Bill of Entry. We find that the issue seems to be settled in favour of the assessee by the following decisions. The relevant paragraphs in the judgments are also reproduced.
i). Bimal Kumar Mehta Vs CC Mumbai 2011 (270) ELT 280
14. We have given careful consideration to the submissions. Having already overruled the jurisdictional objection raised by the learned counsel, we have now to deal with another argument advanced by the counsel. It was submitted that the person chargeable with the duty in the present case has to be identified first before invoking Section 28 of the Customs Act. It was argued that, in a case like this, wherein the Bills of Entry are filed by a front man of the real importer, the latter should be identified as the person chargeable with the duty. Mr. Bimal Kumar Mehra had acted only as a front man of Mr. Javed Alam who had actually taken all the necessary steps for importing Mulberry Raw Silk and cleared the same duty-free. It was Mr. Javed Alam who had actually financed Mr. Bimal Kumar Mehra for obtaining bank guarantee in his name. Mr. Bimal Kumar Mehra only subscribed his signatures to the Bills of Entry and undertook other Customs formalities for the benefit of Mr. Javed Alam. The goods after clearance were also handled by Mr. Javed Alam. In these circumstances, according to the learned counsel, Mr. Javed Alam should be held to be the owner of the goods and, for that matter to be the importer of the goods. The show-cause notices should have been directed mainly against Mr. Javed Alam for recovery of duty from him under Section 28 of the Act inasmuch as such demand of duty could be raised only on the person chargeable with the duty. This view, according to the counsel, would largely benefit the department in similar cases. The learned SDR has also referred to Section 28 of the Act and has submitted that the person who files the Bills of Entry is the importer of the goods and the person chargeable with the duty under the said section. We have no reason to disagree. Importer as defined under Section 2(26) of the Customs Act includes any owner or any person holding himself out to be the importer. In the present case, the appellant, by filing the Bills of Entry, held himself out to be the importer of the goods and, therefore, he is the importer for purposes of Section 28 of the Customs Act. Where the taxable event is import, the tax has to be paid by the importer. Therefore, the importer is the person chargeable with the duty on the goods imported and presented under the Bill of Entry. Accordingly, we hold that the liability to pay duty, in the present case, is on the appellant.
ii). Dhirubhai N. Sheth Vs. CC Bombay 1995 (75) ELT 697
"6. After hearing both the sides and on perusing the? records made available by the ld. SDR, we find that Shri Mahendra Dalal in his statement dated 9-12-1991 has indicated the position as below :
Since Shri Dhirubhai Sheth had requested me that he wanted to open a firm in Ahmedabad in order to avoid certain taxes such as octroi, sales tax on imported consignments which could be directly imported in the name of the Ahmedabad based firm. Thus, I set up M/s. Western Sales Corporation having address of my friend Shri Rasiklal Shantilal Dalal at B-9, Bhumika Appts. Nawa Vikas Grih Rd. Paldi, Ahmedabad - 380 007 and I was to get certain percentage of the profit which was decided upon. At this stage, Shri Dhirubhai Nandlal Sheth took my signature on various forms, particulars of which I am not aware. emphasis supplied).
From the aforesaid portion of the statement, it is clearly evident that Shri Mahendra Dalal agreed to commence the firm and also agreed to sign various blank forms at the instance of the appellant by receiving the monetary consideration by getting certain percentage of profit and this arrangement appears to have been motivated by saving of certain taxes such as octroi, sales tax levied on the consignment, which could be averted, if they are directly imported in the name of Ahmedabad firm. This statement, though retracted, was subsequently confirmed by Shri Mahendra Dalal and even during the adjudication proceedings, both, the appellant as well as Shri Mahendra Dalal, have agreed that the import was made in the name of M/s. Western Sales Corporation, Ahmedabad, though the entire import was motivated and financed by the appellant. In the circumstances, going by the benami arrangements, when the licences have been produced standing in the name of M/s. Western Sales Corporation and their validity otherwise is not questioned by the Department but accepted and debited, the goods cannot be said to have been imported in contravention of any prohibitions attracting the mischief of Section 111(d) of the Customs Act. All the same, in a benami transaction of this type, where, all the documents including the title to the goods standing in the name of M/s. Western Sales Corporation and even the import licences are standing in their name, the appellane, because of the fact that M/s. Western Sales Corporation are a benami firm, cannot plead for substitution of his name as the importer, for purpose of, either allowing clearance against those licences or allowing release on payment of redemption fine. It would have been a different question, if M/s. Western Sales Corporation were before us and had sought for clearance and in that case their plea could have been considered. In this case, M/s. Western Sales Corporation have indicated, even before the adjudicating authority, that they are not interested in the goods and they do not want to clear the goods, despite the fact that licences have been produced. Hence, the goods are to be treated as abandoned by the importer and another person, unless he could establish clear title to the goods, cannot claim release of the goods. Thus, in our view, even if confiscation under Section 111(d) cannot be justified, release of the goods to the appellant, in the absence of producing clear title to the goods, cannot be ordered, as pleaded in the appeal memorandum. The Department is at liberty, to dispose of the goods in accordance with the provisions of Section 48 of the Customs Act.
iii). Ashwin Doshi Vs CCE Goa 2004 (173) ELT 488
2. After hearing both sides and considering the material it is found -
(a) The Commissioner arrived at the following - It can be seen that the fact regarding undervaluation has been accepted by Shri Ashwin Doshi and Shri Doshi has also produced the Manufacturers Invoice and voluntarily paid the differential duty worked out on the basis of discounted Manufacturers Invoice and the duty paid by them at the time of assessment of the relevant Bills of Entry. Shri Doshi also admitted that he is the financier of the consignments imported in the name of M/s. Goodrick Enterprises, and upon his specific instructions to the suppliers the goods have been underinvoiced. The retraction during submissions is only an after thought more so in view of the fact that duty on manufacturers invoice has been paid. Moreover statement made before a Customs Officer is necessary and sufficient to be admitted. There is no proof given that there was coercion. As such I am inclined to accept the original submissions before the investigating Officer and reject the subsequent retraction as an after thought.
Therefore the appellant has been imposed a penalty of Rs. 1,50,000/- under Section 112(a) of the Customs Act.
(b).After appreciating the role of the appellant herein, it can be safely concluded that his interest in the import was that of a financier. Therefore, he was reportedly assisting the import. The Customs Act definition of importer, envisages a person, natural or juristic, but not more than one person at a time. The reliance of the ld. Advocate on the decisions of Dhirubhai N. Seth [1995 (75) E.L.T. 697] is well founded. There is nothing on record about the appellant herein having handled or have made any declarations on the Bill of Entry filed. No act of misdeclaration therefore could be brought on him, which would call for a liability to confiscation and therefore penalty under Section 112(a).
iv).J.B. Trading Corporation Vs. UoI 1990 (45) ELT 9 (Mad.)
11. Before I proceed to consider the legal issues involved the facts may be detailed out. M/s. A.S. Shipping Agencies (P) Ltd., Madras Steamer Agents, for Vessel M.V. Velenje (by which the goods in question arrived) filed an import Manifest I.M. No. 887/86 on 17-9-1986. This is in accordance with Section 30 of the Act. The impugned consignments are covered by Line Nos. 150, 151 and 152 of the Import Manifest. The entries indicated in the Manifest against the above three lines are as under:
Line No.
B/L. No.
No. of Bales
Marks and Nos.
(1)
(2)
(3)
(4)
150
0099/4871 G2 MDS-010
25
C.S-BC/Madras No. 80424/80448
151
C.990/4873 ZMDS-008 G
25
CSC/Madras No. 80374/80398
152
C/089/4872 ZMDS-009 G
25
CSC/Madras No. 80399/80423
Description of Goods
Name of the Consignee/Importers
White Steam Filature (in all)
M/s Continental Silk House, 47, 32nd Main Road, Rajaji Nagar, Bangalore (in all)
It will be seen that the Importer is M/s. Continental Silk House, the holders of the bills of lading. The Customs House Agents M/s. Jeena and Co., Madras fried the bills of entry with invoices dated 4-9-1986 of M/s. Brightex, Hong Kong, on 20-9-1986. The goods arrived on 27-9-1986. The bills of entry were admitted by the Department. They were assigned Nos. 5059 to 5061. They were manifested as GM-837/86 Line Nos. 150 to 152 on 29-9-1986. It came to the light of the Customs Department that M/s. Continental Silk House was not in existence and the licence itself had been obtained by fraud and misrepresentation on the strength of fabricated documents. Therefore, a complaint was lodged on 27-11-1986 by the Deputy Chief Controller of Imports and Exports with the Superintendent of Police, C.B.I. (EOW), Madras to take up investigation against the bogus firm. Accordingly, a First Information Report was prepared in Crime No. R.C. 19 of 86, dated 2-12-1986 and investigation was taken up. On 13-3-1987, the Joint Chief Controller of Imports and Exports passed an order of cancellation of the imprest licence dated 4-4-1986 for C.I.F. value of Rs. 9,59,280/- for the import of mulberry raw silk issued in favour of M/s. Continental Silk House after satisfying himself that it will not serve the purpose for which it was granted. This was in exercise of the powers conferred under Clause 2 (aaa) read with Clause 9(1)(d) of the Imports (Control) Order, 1955. It had also come to the notice of the Customs Department that neither M/s. Continental Silk House nor the supporting manufacturer indicated by them, namely, M/s. J.K. Silk Industries were functioning at the addresses given by them and also at the other addresses furnished by M/s. Continental Silk House, at Madras-19. The show cause notice issued on 6th March, 1987 for the proposed cancellation of the licence dated 4-4-1986 had been returned by the postal authorities with the remarks No such Continental Silk House, No. 26, IInd Street, Kanniappa Gramni Nagar at Tiruvettiyur, Madras - 600 019 and hence returned to sender. On 27-3-1987 in view of the above, M/s. Continental Silk House, M/s. J.K. Silk Industries and M/s. Jeena and Co., were called upon to show cause as to why the consignments should not be confiscated under Section 111(d) of the Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947. This was because the licence was obtained by fraud on the strength of the forged documents. The Importer and the Supporting manufacturers are fictitious firms. The said licence had, therefore, been cancelled. Meanwhile, by letter dated 21-2-1987 Mr. Balani, Advocate addressed a letter to the Assistant Collector of Customs on behalf of the petitioner stating that the three bills of entry filed for the clearance of the consignments could be noted and the clearance of the goods be allowed. To the said letter, the Assistant Collector of Customs replied on 31-3-1987 as follows:
Please refer to your Letter dated 21-2-1987 on behalf of M/s. J.B. Trading Corporation, Bombay addressed to the Assistant Collector of Customs (Imports).
You are hereby informed that one M/s. Continental Silk House filed three Bills of Entry for the clearance of the consignments under reference and adjudication proceedings were already initiated by this office for confiscation of the goods and imposing penalties on the importers and others by way of issue of show cause notice. Since, adjudication proceedings are underway, your request for noting the bills of entry in favour of your client M/s. J.B. Trading Corporation, Bombay cannot be acceded to.
v). Chaudhary International Vs CC Bombay 1999 (109) ELT 371
33.In this connection we find that the department? is correct in pointing out that in terms of Section 2 of the Customer Act the importer is one who is the owner of the goods at the time of importation or any other person who holds himself out as the importer before the clearance of the goods. In this respect we observe that since the goods were consigned to M/s. Chaudhary Intt. and the Bill of Lading as well as other relevant import documents were in the name of M/s. Chaudhary Intt., therefore, M/s. Chaudhary Intt. could alone be considered as owner of the goods at the time of importation. It is significant that Bill of Lading is not merely a document of afreightment or carriage of the goods but is also universally recognised as a document of title during international trade and commerce.
34. Furthermore, the second part of the definition of the importer as given in Section 2 comes into play in the absence of any information or knowledge or documentation regarding the owner at the time of importation. But once the nationally and internationally recognised documents which were available show that M/s. Chaudhary Intt. were the title holders and importer of the goods, we do not have to proceed further to see whether anybody else was desirous of clearing the goods, because a mere expression of such a desire or willingness was not sufficient to consider one as an importer. In our opinion it is also immaterial whether the order was placed by Sh. Biren Shah/M/s. Audio Visual Devices - whether directly or through M/s. Chaudhary Intt. or the clearance was sought with reference to DEEC passbook of M/s. Chaudhary Intt. for the purpose of determining who was the importer particularly when they did not held themselves out to be the importer of the goods before clearance. The fact that they had agreed to clear the goods and were willing to pay duty or fine was not relevant. Similarly purchase of the goods after importation was a different issue. As rightly pointed out before us even in the second part of Section 2 of Customs Act, 1962 the significant words are before the clearance of the goods and there is no evidence to the effect that they held themselves out to be the importer of the goods by filing any proof of being the real importer before clearance. Even at this stage they have merely stated that they had placed orders and also emphasised that they had not imported but simply purchased the goods and had taken clearance because it was allowed by the customs themselves. In view of the above facts and circumstances even if there was a violation of the customs or the ITC provisions as held by the Collector, he could have given the option to redeem the goods only to M/s. Chaudhary Intt. and not to Sh. Biren Shah or Audio Visual Devices. He has therefore grossly erred in holding Sh. Biren Shah/Audio Visual as the importer and allowing them the clearance.
It is immaterial in this connection as to whether Sh. Biren Shah or Audio Visual Devices gave any letter or stated that they were prepared to take clearance on payment of duty and fine or otherwise. As a matter of fact since it is not a case of high sea sale and there is no indication that the Bills of Lading or Bill of Entry or other documents were endorsed in the name of Sh. Biren Shah/Audio Visual Devices or that they were authorised by M/s. Chaudhary Intt. to make any submissions or admit anything on their behalf, or to clear the goods or to pay duty, fine or penalty on their behalf and there is no evidence that they had held themselves to be importer of the goods before clearance, or there was any other proof to this effect that the Collector must not to have allowed them to clear the goods confiscated by him whether on payment of fine or otherwise.
Whether they had abetted in any commission or omission of an offence by M/s. Chaudhary Intt. or otherwise was another matter and a different issue but even if it was so established the goods in any case could not have been allowed to be cleared from the docks or redeemed by Sh. Biren Shah/Audio Visual Devices (as aforesaid whether on payment of fine or otherwise).
vi).Hamid Fahim Ansari Vs CC Nhava Sheva 2009 (241) ELT 168 (Bom)
5. In other words, imports have been? done in the name of the petitioner but for some other person. In so far as respondents/Customs Authorities is concerned, they have not pointed out to us any provision under the Customs Act or any Rule or Regulation framed thereunder by which the person having valid IEC Number and having paid the custom duty is prevented from importing goods. At the highest, if the petitioner has obtained IEC number by misrepresenting the Ministry of Commerce and Industry and Director General of Foreign Trade, it is for that body to take action.
vii).Proprietor, Carmel Exports and Imports Vs CC Cochin - 2012 (276) ELT 505 (Ker.)
15. Coming to the submission that the appellant is only a name lender for the import of goods by one Anwar, we shall presume for the time being that the appellant is only a name lender, but the actual beneficiary of the import is one Anwar. We called upon learned counsel for the respondents to place the relevant provision which prohibits such an activity on the part of an Import Export Code Number holder. Learned counsel for the respondents categorically made a statement that he is not able to place any such prohibition in law except Section 7 of the Foreign Trade (Development and Regulation) Act, 1992, which reads as follows :-
7. Importer-exporter Code Number. - No person shall make any import or export except under an Importer-exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General.
The expression import occurring in the said section means bringing into India of goods as defined under Section 2(e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also. Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an importer, who enjoys the facility of I.E. Code imports certain goods in the normal course of business on the strength of a contract entered by such importer with either a consumer or a trader who eventually sells the imported goods to consumers. We do not understand what can be the legal objection for such a transaction especially where the import of such goods is otherwise not prohibited by law. At any rate, if the respondents have any tenable legal objection on that count, the respondents must pass an appropriate order indicating the legal basis on which the action is proposed and also the nature of the action proposed for such perceived violation of law on the part of the respondents after giving a reasonable opportunity to the importer to meet the case against him. Instead of proceeding to determine the duty leviable on the imported goods by following the appropriate procedure or passing an order of confiscation if they believe that they are justified in the facts and circumstances, the respondents, it appears, are indefinitely detaining the goods without any appropriate order being passed thereon. Such a course of action, in our opinion, is absolutely illegal.
11. In view of the above reproduced ratio of various judgments, it has to be concluded that an importer under Section 2(26) is a person who has filed the Bills of Entry for the clearances and has paid the Customs duty. The above said judgments also lay down a ratio that an IEC code holder cannot be denied the clearances of consignments if he has filed the Bills of Entry. In these appeals before us, it is undisputed that Bills of Entry are not filed by the appellant herein and in our considered view, he cannot be held as an importer.12. Reliance placed by ld. Departmental Representative on the decision of Hon'ble High Court of Karnataka in the case of Ramesh Solanki may not carry the case of the Revenue any further, in as much as that their Lordships were considering the issue which was factually different than the cases in hand; it is to be noted that the decision of the Hon'ble High Court of Chennai in the case of J.B. Trading Corporation (supra) has specifically interpreted the provision of Section 2(26) of the Customs Act, 1962. In the case of Ramesh Solanki, their Lordships were not considering that specific provision.13. In view of the foregoing, we find that the impugned order holding the appellant as an importer under Section 2(26) of the Customs Act, 1962 is unsustainable and is liable to be set aside and we do so.
14. The impugned order is set aside and the appeals are allowed.