Full Judgment
2. The appellant is absent and unrepresented. By a telegram it has sought adjournment on the ground that the manager, who is conversant with the case, is till.
3. The matter was adjourned at the request of the appellant earlier on the following occasions: 4. If the manager was ill for three months, as would be evident from the above, there would be evidence to support his hospitalisation. The ground as given seeking for adjournment does not impel us to grant on the claim that it made. We therefore decline to adjourn. We have read the memorandum of appeal and other relevant papers and also heard the departmental representative.
5. The duty has been demanded on the goods that the appellant imported in terms of an advance licence to exemption under notification 117/88.
The goods were imported for manufacture of carpets which were required to be exported. The department concluded that the consignments of formic acid and Rangolite 'C' has been sold contrary to law by the appellant. The evidence that it relied upon consisted upon the following. Pravinchandra Shah, a director of Vipul Dyes and Chemicals, stated that it purchased the passbook and in his statement of 16.4.1991 at page 174 gave details of the amount that he paid and of the warehousing of the goods at a place at Bhiwandi from where the goods delivered to locals on his instructions. He stated that all charges with regard to these goods were paid by him. Khushaba Bhangar, an employee of New Bright Shipping Agency, the Custom House Agent concerned with the clearance of the goods also confirmed what Pravinchandra Shah stated. It is on this basis that the Commissioner has demanded the duty and ordered other action.
6. We shall now deal with the contention made in the appeal. The claim that written submission was not considered and discussed by the Commissioner is not correct. The Commissioner has passed a detailed order. The contention that the second show cause notice on the basis of which the goods were seized is bad in law because there was no specific direction of the Commissioner (Appeals) for de novo adjudication is again wrong. In his order passed on an appeal by the appellant against the order of the Additional Commissioner, the Collector of Customs adjudicating on a notice that was earlier issued to the appellant, the Collector (Appeals) found that the show cause notice demanding duty by invoking the extended period could not have been issued by the Assistant Collector, set aside the order of adjudication and gave an opportunity to the department to issue a fresh notice, if otherwise according to law. This contention is therefore unacceptable. The contention that the extended period will not apply is again unacceptable. The fact of sale of goods has clearly been suppressed by the appellant. It is next contended that the appellant has fulfilled the export obligation and therefore permitted to transfer the goods to actual users. The provisions of paragraph 244 of the relevant policy for period April 1988 - March 1991 deal with utilisation of exempted material. Sub paragraph (2) of 244 permitted, export of product appearing in Appendix 3E (included scrap) a merchant exporter and export trading houses to transfer the replenished exempt materials to actual user subject to observance of specific procedure. Since the appellant was not a export trading house or a merchant exporter but an actual user manufacturer, the Collector's conclusion that this provision will not apply has to be confirmed. No other provision is cited in support of the claim. We are therefore unable to accept this contention.
7. It is also not possible to accept the contention that the liability for customs duty would depend upon the decision of the licensing authority. The judgment of the Supreme Court in Shashank Sea Foods v.CC 1996 (88) ELT 626 is sufficient authority for the proposition that recovery of customs duty in such cases is within the dominant of the customs authority. The liability duty on the importer has therefore to be confirmed. We are however unable to sustain the confiscation order of the consignment of formic acid under Clause (d) of Section 111 of the Act. The basis for the confiscation appears to be that the appellant had already sold the goods to Pravin Chandra Shah. However, if this was so, this would not attract the provisions of Clause (d) of Section 111 of the Act. Thus the import itself is unauthorised under Section 111 (d) of the Act.
We note that while the show cause notice propose confiscation under Clause (o) and (d) of Section 111 of the Act, the Commissioner has only ordered confiscation under Clause (d). Therefore, while setting aside the confiscation of the goods we would like the Commissioner to consider this point and pass orders on the liability to confiscation of the goods under Clause (o) of Section 111 of the Act. Accordingly, the penalty imposed on the Appellant is also set aside. The Commissioner shall determine the liability of the confiscation under Clause (o) Section 111 of the Act and then determine the penalty.