1989 (4) TMI 291 - AT - Customs

Court upholds Collector's findings on imported goods violation, penalties upheld

The court upheld the Collector's findings, confirming the confiscation of goods imported in violation of Import Trade Control regulations. The appeals ... Import - OGL - Confiscation - Misdeclaration of quantity and value - Penalty Issues Involved:1. Whether the goods imported constitute fully finished consumer electronic items in SKD condition, and if so, whether they are liable for confiscation.2. Whether the items imported by M/s. Alconic International Merchandise are components for the manufacture of toys or fully manufactured toys.3. Whether the quantities of items covered by the Bills of Entry were deliberately under-declared.4. Whether there was a deliberate misdeclaration of the value of video magnetic pancakes.5. Whether M/s. Shivam Electronics, M/s. Monica Enterprises, and M/s. Cosmopolitan Electronics were in existence and engaged in the manufacture of electronic goods, making them eligible for import under OGL as actual users (industrial).Detailed Analysis:Issue 1: Fully Finished Consumer Electronic Items in SKD ConditionThe Collector concluded that the goods imported under Bills of Entry No. D-764 and D-765 dated 17-3-1986 in the name of M/s. Shivam Electronics, Nos. D-780, D-771, and D-773, all dated 17-3-1986 in the names of M/s. Amber Electronics, M/s. Monica Enterprises, and M/s. Alconic International Merchandise, and Nos. D-816 and D-767 dated 17-3-1986 in the name of M/s. Monica Enterprises, were factory-packed electronic consumer goods fully manufactured and imported in SKD condition, not component parts. The import of these electronics goods is prohibited vide serial No. 122 of Appendix-2, Part B of the Import & Export Policy, 1985-88, and the imported goods are liable to confiscation under Section 111(d) of the Customs Act, 1962 read with section 3(2) of the Imports & Exports (Control) Act, 1947. The Collector also held that the value declared by the appellants for components cannot be accepted since what have been imported are not components, but fully manufactured factory-packed consumer electronic products in SKD condition. The Collector's findings are based on the facts and materials, and the arguments presented by the appellants were not found convincing.Issue 2: Components for Manufacture of Toys or Fully Manufactured ToysThe Collector stated that during the personal hearing, the samples of toys were shown to the defense, and they conceded that those were fully manufactured toys and not components. The goods being consumer goods, their import was prohibited under serial No. 122 of Appendix 2, Part-B of Import and Export Policy for 1985-88, and they could not be imported under Open General Licence. The toys imported under bill of entry No. D-772 dated 17-3-1986 have been correctly confiscated by the Collector under Section 111(d) of the Customs Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947.Issue 3: Deliberate Under-declaration of QuantitiesThe Collector discussed the point regarding the shipment of excess goods than those declared in the bills of entry. The appellants' plea before the Collector was that the fact of excess shipment came to the notice of the foreign supplier based on the auditor's scrutiny. The Collector did not accept this plea, noting that the Directorate of Revenue Intelligence started the enquiry on 18-3-1986, and Shri Jatinder Uppal came to know about this enquiry on 18-3-1986, by which date the assessment was done by Customs and the duty was paid on 17-3-1986. The duplicate bills of entry were collected by Shri Uppal, and the goods were not yet examined. The Collector also noted that the appellants could not provide any positive evidence to show the quantities ordered for ICD Delhi, the quantities ordered for Madras, and how much had been received or not received at Delhi vis-a-vis those received at Madras. In the absence of such evidence, the Collector held that the telex dated 21-3-1986 was solicited. The Director, Overseas Communication Service, Delhi, reported non-receipt of an incoming call to Delhi Telex No. 3165628 from Singapore. The Collector was justified in rejecting the assertion of the appellants and holding them guilty of deliberate mis-declaration, leading to the confiscation of the goods under Section 111(m) of the Customs Act. The excess goods not declared in the bills of entry were also liable to confiscation under Section 111(l) of the Customs Act.Issue 4: Deliberate Misdeclaration of Value of Video Magnetic PancakesThe Collector dropped the charge of mis-declaration of value but confirmed the charge of mis-declaration of quantity regarding the video magnetic tapes imported under bill of entry No. D-766 dated 17-3-1986 by M/s. Monica Enterprises. The findings of the Collector were upheld as correct.Issue 5: Existence and Engagement in Manufacture of Electronic GoodsThe Collector concluded that M/s. Shivam Electronics, M/s. Monica Enterprises, and M/s. Cosmopolitan Electronics were not functionally in existence at the addresses declared in the bills of entry. During the hearing, it was stated that M/s. Monica Enterprises and M/s. Cosmopolitan Electronics changed their addresses in March 1986 and 11-2-1986, respectively. Nothing was said about the change of address for M/s. Shivam Electronics. M/s. Cosmopolitan Electronics did not have any L-4 license. The statements of the landlords and neighbors confirmed that there were no manufacturing units at the given addresses. The plea that licenses and letters were sent to the given addresses of the firms and that they had S.S.I. Registration, Sales-tax Registration, Municipal and Central Excise licenses did not prove that they were manufacturing electronic items at the time of import of the consignments. The Collector's conclusion on this point was found to be correct.Conclusion:The Collector's findings and conclusions were upheld. The appeals were dismissed, and the confiscation of goods and the penalty imposed on Shri Jatinder Uppal were confirmed. The goods were imported in violation of the Import Trade Control regulations, and the appellants' arguments were not found convincing to overturn the Collector's decision.