Ajanta Industries Vs. Commissioner of Customs - Court Judgment

Excerpt:
1. these two appeals are filed against the same order of the commissioner. the facts being common they are being disposed of vide this single order.2. m/s. ajanta industries were merchant-exporters. they were holders of an advance licence enabling them to import 100% mulberry raw silk. m/s.hetampuria textiles was a proprietary unit owned by anand agarwal. they were traders and commission agent dealing in many other articles and raw silk. shri agarwal placed an order on m/s. peer hill limited, hong kong, for supply of 219 bales of mulberry raw silk to m/s. oceanic export, bombay. the goods arrived sometime at the end of october, 1995 and an igm was filed on 1-11-1995 showing the importer as m/s. oceanic export citing bill of lading dated 22-10-1995. the goods were not cleared for quite sometime and were lying in the docks. as per the statement of the shipping agent m/s. oceanic exports requested them not to issue delivery orders in their name. on 4-12-1995 the shipping agent requested their agents abroad for amendment of the manifest showing consignee as ajanta industries. m/s. oceanic exports gave their noc for this amendment. an amendment application was filed. subsequently the central intelligence unit examined the consignment which was found to be as per the document but which was seized. after making investigations show cause notice was issued. the allegations made were that goods could be imported into india only by an authorised importer having a valid import licence. the said consignment was imported into india without any authorised consignee owning a proper import code number. it was alleged that the amendment applied for was for a measure of convenience and should not be allowed. it was alleged that the goods were liable to confiscation under section 111(d) of the act and that the shippers, the shipping agent and ajanta industries whose name was sought to be made as the consignee were liable to penalty.3. on hearing the concerned noticees and other persons the commissioner passed the impugned order. in paragraph 22 of his order he squarely held that the enquiries did not indicate any fraud in the importation.he observed that ajanta industries were an existing form with no adverse record with the customs. he held that there was no bar in permitting amendment of the igm in terms of section 30(3) of the customs act, 1962.4. with these observations the commissioner in effect acceded to the request for amendment. the amendment was for the change in the name of the consignee from m/s. oceanic exports to m/s. ajanta industries. by way of approval by the commissioner m/s. ajanta industries became the importers in the eyes of the customs. the commissioner very clearly recorded in this paragraph that m/s. ajanta industries were in possession of a valid licence and therefore nothing had been done by them which would render the goods liable to confiscation and therefore they would not be liable to penal action. he also exonerated the shippers, shipping agent as well as the agents of the ship from any wrongdoing.5. after holding so, in another paragraph the commissioner made a startling different finding. he held that the imports were made by anand agarwal in the name of oceanic exports. oceanic exports had gone on record saying that they did not place any such order for import. the commissioner held that the goods were imported by agarwal without a valid import licence thereby rendering them liable to confiscation under section 111(d) of the act. in this belief he confiscated the goods and imposed the penalty on agarwal.6. thus the commissioner in the same order held two separate people as importers. the actual or physical exporter he exonerated and the person who is accused to be the importer and who is not an importer, he penalised. as we have observed that the show cause notice did not make any allegation as to the liability to penalty against anand agarwal.since in the face of the evidence he could not be termed to be the importer and since no allegation was made to that effect the penalty imposed upon anand agarwal does not survive and is set aside.8. as we have brought above the ground rendering the goods liable to confiscation under section 111(d) is also not sustainable. these orders also have to be set aside. there is a peculiarity in these proceedings.the commissioner himself has recorded in paragraph 16 of his order the submission made on behalf of m/s. ajanta industries that they would not be able to clear the goods under an advance licence. the fact that the goods were restricted comes out in the proceedings and is not denied.therefore it was required that they produce a licence other than an advance licence and clear the goods on payment of duty as was made clear by them in paragraph 16. shri vipin jain submits that the goods were cleared on payment of duty and that no other licence was produced.the lack of adequate licence would have been the correct ground for the commissioner to have confiscated the goods and have imposed fine. since he has done the confiscation, entirely on a wrong and unsustainable ground we are constrained to set aside his orders.9. shri a.k. jain, the learned dr at this stage requested us to remand the proceedings for de nova consideration on the plea that it is obvious that the goods could not be cleared without a valid licence. we do not accede to this request which could have had merit if the appeal had been filed by the revenue. for the same reason we do not accept the claim that the show cause notice having been issued to "all concerned other persons" would justify imposition of penalty on shri agarwal.10. in the result both appeals succeed and directions are made for consequential relief, if any, as per law.

Judgment:
1. These two appeals are filed against the same order of the Commissioner. The facts being common they are being disposed of vide this single order.

2. M/s. Ajanta Industries were merchant-exporters. They were holders of an advance licence enabling them to import 100% mulberry raw silk. M/s.

Hetampuria Textiles was a proprietary unit owned by Anand Agarwal. They were traders and commission agent dealing in many other articles and raw silk. Shri Agarwal placed an order on M/s. Peer Hill Limited, Hong Kong, for supply of 219 bales of mulberry raw silk to M/s. Oceanic Export, Bombay. The goods arrived sometime at the end of October, 1995 and an IGM was filed on 1-11-1995 showing the importer as M/s. Oceanic Export citing bill of lading dated 22-10-1995. The goods were not cleared for quite sometime and were lying in the docks. As per the statement of the shipping agent M/s. Oceanic Exports requested them not to issue delivery orders in their name. On 4-12-1995 the shipping agent requested their agents abroad for amendment of the manifest showing consignee as Ajanta Industries. M/s. Oceanic Exports gave their NOC for this amendment. An amendment application was filed. Subsequently the Central Intelligence Unit examined the consignment which was found to be as per the document but which was seized. After making investigations show cause notice was issued. The allegations made were that goods could be imported into India only by an authorised importer having a valid import licence. The said consignment was imported into India without any authorised consignee owning a proper import code number. It was alleged that the amendment applied for was for a measure of convenience and should not be allowed. It was alleged that the goods were liable to confiscation under Section 111(d) of the Act and that the shippers, the shipping agent and Ajanta Industries whose name was sought to be made as the consignee were liable to penalty.

3. On hearing the concerned noticees and other persons the Commissioner passed the impugned order. In Paragraph 22 of his order he squarely held that the enquiries did not indicate any fraud in the importation.

He observed that Ajanta Industries were an existing form with no adverse record with the Customs. He held that there was no bar in permitting amendment of the IGM in terms of Section 30(3) of the Customs Act, 1962.

4. With these observations the Commissioner in effect acceded to the request for amendment. The amendment was for the change in the name of the consignee from M/s. Oceanic Exports to M/s. Ajanta Industries. By way of approval by the Commissioner M/s. Ajanta Industries became the importers in the eyes of the Customs. The Commissioner very clearly recorded in this paragraph that M/s. Ajanta Industries were in possession of a valid licence and therefore nothing had been done by them which would render the goods liable to confiscation and therefore they would not be liable to penal action. He also exonerated the shippers, shipping agent as well as the agents of the ship from any wrongdoing.

5. After holding so, in another paragraph the Commissioner made a startling different finding. He held that the imports were made by Anand Agarwal in the name of Oceanic Exports. Oceanic Exports had gone on record saying that they did not place any such order for import. The Commissioner held that the goods were imported by Agarwal without a valid import licence thereby rendering them liable to confiscation under Section 111(d) of the Act. In this belief he confiscated the goods and imposed the penalty on Agarwal.

6. Thus the Commissioner in the same order held two separate people as importers. The actual or physical exporter he exonerated and the person who is accused to be the importer and who is not an importer, he penalised. As we have observed that the show cause notice did not make any allegation as to the liability to penalty against Anand Agarwal.

Since in the face of the evidence he could not be termed to be the importer and since no allegation was made to that effect the penalty imposed upon Anand Agarwal does not survive and is set aside.

8. As we have brought above the ground rendering the goods liable to confiscation under Section 111(d) is also not sustainable. These orders also have to be set aside. There is a peculiarity in these proceedings.

The Commissioner himself has recorded in Paragraph 16 of his order the submission made on behalf of M/s. Ajanta Industries that they would not be able to clear the goods under an advance licence. The fact that the goods were restricted comes out in the proceedings and is not denied.

Therefore it was required that they produce a licence other than an advance licence and clear the goods on payment of duty as was made clear by them in Paragraph 16. Shri Vipin Jain submits that the goods were cleared on payment of duty and that no other licence was produced.

The lack of adequate licence would have been the correct ground for the Commissioner to have confiscated the goods and have imposed fine. Since he has done the confiscation, entirely on a wrong and unsustainable ground we are constrained to set aside his orders.

9. Shri A.K. Jain, the learned DR at this stage requested us to remand the proceedings for de nova consideration on the plea that it is obvious that the goods could not be cleared without a valid licence. We do not accede to this request which could have had merit if the appeal had been filed by the Revenue. For the same reason we do not accept the claim that the show cause notice having been issued to "All Concerned Other Persons" would justify imposition of penalty on Shri Agarwal.

10. In the result both appeals succeed and directions are made for consequential relief, if any, as per law.