TaxTMI 
TaxTMI 
2011 (4) TMI 307
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....ridges for which there is absolute prohibition vide Notification No. 40 CUS dated 6-6-1970 issued under Section 11 of the Customs Act, 1962, as well as vide paragraph 2.32 of the Foreign Trade Policy 2009-2014. 4. Submission of the learned counsel for the accused-applicant is that the accused-applicant is a bona fide importer having IEC issued by the DGFT by the competent authority under the Foreign Trade (Development and Regulation) Act, 1992. It is further submitted that earlier the firm M/s. Ruby Impex was in the name of Vicky Chawala, the son of the accused-applicant and the accused-applicant was the authorized signatory of the said firm and on 12-4-2010 his son Vicky Chawala has transferred the firm in the name of accused-applicant and since then he has become the proprietor of the firm M/s. Ruby Impex. The accused-applicant was not the importer of the goods during the relevant time. It is also submitted that the accused-applicant at best may be alleged only in respect of one consignment for which Bill of Entry has been filed and the alleged violation of Section 111(m) and 111(f) of the Act cannot be sustainable in the absence of any Bill of Entry filed in respect of rem....
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....e has been a violation of the Arms Act, the matter should have been forwarded to the concerned police authorities to take appropriate action under the Arms Act. But the so-called live cartridges were never forwarded to the police for investigation. The goods were cleared by the proper Officer of Customs under the provisions of the Customs Act, 1962, under a proper B/E on payment of appropriate duty and therefore the seizure of the goods and arrest of the accused-applicant is arbitrary, unreasonable and illegal. It is further submitted that the exporter of the goods in USA by the letter dated 8-1-2010 had intimated that the containers detained by the DRI as mentioned-above were meant for other destination but not for present accused-applicant. Hence, the exporter requested for return of the said containers. On receipt of this letter, the accused-applicant through his Advocate requested the Customs authorities verbally to allow re-export and change in IGM. But the customs authorities declined to such request and even decline to take request through letter in this regard and ultimately on 9-3-2010 the Advocate sent the request by post. In the event of exporter's request for returning ....
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....of Entry of 7 containers has been filed, so there is no mis-declaration. Secondly, the IGM and Bill of Ladings are the documents generated by the shipping line. Thirdly, the applicant vide his letter dated 9-3-2009 clarified to the customs authorities, while making request for re-export and the same was denied. Fourthly, a clear clarification by the exporter regarding direct loading of the containers from the shipyard absolves the applicant for misdeclaration in the goods. Fifthly, it is clarified in foregoing paras, that DRIs claim of recovery of live cartridges in the scraps is not tenable because no cartridges found to be live, irregularities in the proceedings and drawls of Panchnama etc. and contradictory stands taken by DRI as revealed from various documents. Sixthly, the recovery of lead scraps instead of brass scrap is not a grave offence. Import of lead scrap is allowed provided the importer is having a license for that. It is further submitted that in compliance of the summons the accused-applicant appeared before the summoning authority on 14-9-2010 in the office of DRI and his statement was recorded under Section 108 of Customs Act, 1962, before the Senior Intelligence ....
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....T 5 (S.C.). (12) Commissioner v. Kabul Textiles reported in (LLC) - 2007 (218) E.L.T. A122 (S.C). (13) Sangit Krishna Kumar Agrawal v. Union of India reported in 2007 (219) E.L.T. 143 (Bom.). (14) Commissioner of Customs, Calcutta v. South India Television (P) Ltd. reported in 2007 (214) E.L.T. 3 (SC). (15) Avinash Bhosale v. Union of India arising out of SLP (Cri.) No. 4421 of 2007. (16) Commissioner v. Chandra I. Kriplani reported in 2008 (227) E.L.T. A68 (S.C). (17) Sultan Kamruddin Dharani v. Union of India reported in 2008 (231) E.L.T. 217 (Bom.). (18) Commissioner of Customs, Mumbai v. Foto Centre Trading Co. reported in 2008 (225) E.L.T. 193 (Bom.). (19) Lal Kamlendra Pratap Singh v. State of U.P. and Others reported in (2009) 4 SCC 437. (20) Directorate of Revenue Intelligence v. Moni reported in 2010 (252) E.L.T. 57 (Del.). (21) Arya International v. Commissioner of Customs, Kandla reported in 2010 (258) E.L.T. 441 (Tri-Ahmd.). (22) Kulbhushan Goyal v. Joint Commissioner, Customs. (23) Commissioner of Customs, New Delhi v. Alok Overseas reported in 2004 (165) E.L.T. 252 (Tri.-Del). (24) S.G. Steels v. Commissioner of Customs, New Delhi reported in 2007 (215) E.L.T. 64 (Tri....
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.... v. Duncan Agro Industries Ltd. reported in 2000 (120) E.L.T. 280 (S.C.). (48) Mohtesham Mohd. Ismail v. SPL. Director, Enforcement Directorate reported in 2007 (220) E.L.T. 3 (S.C.) = 2009 (13) S.T.R. 433 (S.C.). (49) Asst. Collector of Customs (Pre.), Bombay v. Ahmed Abdulkarim reported in 2009 (247) E.L.T. 97 (Bom.). (50) Vinod Solanki v. Union of India reported in 2009 (233) E.L.T. 157 (S.C.) = 2009 (13) S.T.R. 337 (S.C.). (51) Raj Kumar Damani v. Union of India reported in 2010 (257) E.L.T. 371 (Cal.). (52) Gipoint Development Limited v. Collector of Customs, Madras reported in 1995 (80) E.L.T. 55 (Mad.). (53) Chaudhary International v. Collector of Customs, Bombay reported in 1999 (109) E.L.T. 371 (Tribunal). (54) J.B. Trading Corporation v. Union of India reported in 1990 (45) E.L.T. 9 (Mad.). (55) Ashwin S. Mehta v. Commissioner of Customs, Mumbai reported in 2006 (197) E.L.T. 386 (Tri.-Mumbai). 7. Learned Counsel for the Union of India has strongly opposed the prayer for bail and submitted that on the basis of Intelligence developed by the Officers of DRl, Zonal Unit, Lucknow that the accused-applicant, proprietor of M/s. Ruby Impex, Jalandhar, is engaged in illegal ....
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....der Section 108 of the Customs Act, 1962. 8. It is further submitted that in as much as in all the documents whether the Bill of Entry submitted by him or Bill of lading and the goods declared in IGM (Import General Manifest) by the exporter, the goods were shown as "Zinc Scrap" and 'Brass Scrap' while in fact the goods illegally imported found in the containers were Lead Scrap and 3001 Live cartridges and 15,198.07 Kgs. empty shells of cartridges as detailed in paragraph 16 of the complaint for which there is absolute prohibition vide Notification No. 40-Cus., dated 6-6-1970 issued under Section 11 of the Customs Act, 1962, as well as vide paragraph 2.32 of the Foreign Trade Policy 2009-2014. The accused-applicant imported the Lead Scrap a restricted item and the same can only be imported after fulfilling certain conditions under Rule 13 of the Hazardous Wastes (Management, Handling and Trans-boundary Movement) Rules, 2008 the import and export of Hazardous Wastes for disposal from any country into India are prohibited. However, the import and export of Hazardous Wastes specified in Schedule-III for recycling, recovery and reuse is regulated in accordance with the conditions....
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.... Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, as listed in Schedule-III (Part A) A 1010 read with Para 2.32 of Handbook of Procedures Vol. I of Foreign Trade Policy 2009-2014. 13. The Live cartridges, blank cartridges and brass scrap are liable for confiscation under the provisions of the Customs Act, 1962 and Foreign Trade Policy 2009-2014 as the import of live cartridges is prohibited as per the Trade Policy of the Government of India, Para 2.32 of Handbook of Procedures Vol. 1 of Foreign Trade Policy 2009-2014 read with provisions at Sl. No. 83 of Schedule A (Prohibition of Imports into India), as per Notification regarding specific Prohibitions and restriction of importation and exportations issued under Section 11 of Customs Act, 1962, and M.F. (D.R. & I.) Notification Number 40-Cus., dated 6-6-1970 and the import of empty cartridge casings is also prohibited in terms of Para 2.32 of Handbook of Procedures, Vol. 1 of Foreign Trade Policy 2009-2014 and as such the live cartridges and the empty cartridge casings are liable for confiscation in terms of Section 111(d), 111(f) and 111(m) of the Customs Act, 1962 and the Brass Scrap used for c....