| SooperKanoon Citation | sooperkanoon.com/42725 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta |
| Decided On | May-25-2006 |
| Judge | S T S.S., K Kumar |
| Appellant | Vijay Traders and ors. |
| Respondent | Commissioner of Central Excise, |
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = ''include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]1. issue involved in these appeal is whether photocopier machine parts, old & new are consumer goods and or classifiable as old/photocopiers to call for confiscation liability under section 111(d) of the customs act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.2. following the larger bench decision, confiscation liability under section 111(d) cannot be arrived; the penalties therefore cannot be upheld under section 112 of the customs act 1962 as arrived.3) a) the commissioner in purporting to come to the conclusion that the appellant no. 1 was the importer / owner of the.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = ''include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p align="justify">2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p align="justify">3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p align="justify">b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p align="justify">c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p align="justify">At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p align="justify">4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p align="justify">It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p align="justify">5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p align="justify">6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'vijay-traders-vs-commissioner-central', 'args' => array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) ) $title_for_layout = 'Vijay Traders and ors Vs Commissioner of Central Excise - Citation 42725 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '42725', 'acts' => null, 'appealno' => null, 'appellant' => 'Vijay Traders and ors.', 'authreffered' => null, 'casename' => 'Vijay Traders and ors. Vs. Commissioner of Central Excise,', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta', 'court_type' => 'TRI', 'decidedon' => '2006-05-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => 'S T S.S., K Kumar', 'judgement' => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.</p><p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.</p><p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.</p><p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.</p><p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.</p><p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.</p><p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.</p><p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.</p><p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.</p><p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Central Excise,', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'vijay-traders-vs-commissioner-central' $args = array( (int) 0 => '42725', (int) 1 => 'vijay-traders-vs-commissioner-central' ) $url = 'https://sooperkanoon.com/case/amp/42725/vijay-traders-vs-commissioner-central' $ctype = '' $content = array( (int) 0 => ' 1. Issue involved in these appeal is whether Photocopier machine parts, old & new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with & consequent penalty as arrived, or following the decision in the case of & being bound by the same, goods are to be allowed clearance without confiscation & penalty liability is an issue settled in favour of release of goods on duty only.', (int) 1 => '<p>2. Following the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.', (int) 2 => '<p>3) a) The Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de-stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.', (int) 3 => '<p>b) The appellant is said to be expecting receipt of the documents from the foreign exporter relating to the said goods including the original Bill of Lading, which they had refused to make available for reasons of non payment of dues in respect of earlier consignments, in order to avoid further incurring of demurrage and container rent charges, they had authorized the Clearing Agent to, in consultation with the Shipping Agent, to have the said goods de-stuffed and warehoused in the Container Freight Station of the Central Warehousing Corporation inside of the port premises/ Customs area. This action of the appellant No. 1 will in no manner whatsoever could make the appellant an "importer" of the said goods within the meaning of the Act.', (int) 4 => '<p>c) Section 2(26) of the Act defines that an "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, to include "any owner or any person the materials on record clearly and unambiguously demonstrate that the appellant No. 1 is not and cannot said to be "owner" of the said goods.', (int) 5 => '<p>At no time in the present case the appellant No. 1 has held itself out to the Customs Authorities or to anyone else to be the importer of the said goods. No order is shown to be placed by the appellant No. 1 for the said goods upon the foreign exporter nor is there any document on record which disclose, which even remotely establish that the appellant No. 1 had ordered for the said goods pursuant to which the same were shipped by the foreign exporter. The Appellant No. 1 had neither filed the Bill of Entry in respect of the said goods nor had made any payment in respect thereof. In the premises, the Commissioner should have appreciated and has erred in not doing so, that the appellant No. 1 was neither the owner of the said goods nor the importer thereof within the meaning of the Act & therefore cannot be an importer.', (int) 6 => '<p>4. The mala fide and perverse manner in which the show cause notice has been issued, on completely false premises, is evident from the Show Cause Notice itself. In spite of being fully aware that no Bill of Entry was filed by the appellant or its sole proprietor at any point of time in respect of said goods, yet in paragraphs 2 and 3 of the show cause notice, a case has been sought to be made out on the basis of Bills of Entry Nos. 156608 dated December 30, 2002 and 156144 dated December 19, 2002, which had been filed by the appellant No. 1 through their Customs House Agent in respect of some other consignments. There is complete suppression that the said Bill of Entry relates to another consignments of goods imported by them in the month of December, 2002 and which formed the subject matter in appeal Nos. C/DM-48 to 57/2003 before this Tribunal decided in the appellant's favour VIDE order, No.A-371-380/KOL/2003 pronounced on June 10, 2003 [, a Masherwali Impex and Ors. v. Commissioner of Customs, Kolkata]. The said Bills of Entry, therefore, has no relevance or applicability whatsoever to the herein goods. This would be further evident from the fact that, as stated in the show cause notice itself the Bill of Lading relating to the said goods is dated January 1, 2003.', (int) 7 => '<p>It is, therefore, incomprehensible how, for goods which were shipped on January 1, 2003 by the foreign exporter the Bills of Entry could have been filed by the appellant, in December 2002, can have (sic) relevance.', (int) 8 => '<p>5. The Commissioner however in the said order conveniently overlooks this relevant and material fact which clearly demonstrate the ex-facie unsustainability of the Show Cause Notice and the proceedings conducted there under against the appellant and, others. It proceed on the basis of this patently erroneous allegation to purport to pass the said order & cannot be involved.', (int) 9 => '<p>6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.' ) $paragraphAfter = (int) 1 $cnt = (int) 10 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. In view of the findings, we would set aside the order of confiscation, penalty & allow the appeals.