TaxTMI 
TaxTMI 
2011 (6) TMI 285
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....ded purpose viz. processing of such yarn, but diverting the same to the same High Seas sellers based at Bangalore. Investigation also revealed that the monetary consideration for the High Seas Sales was being sent to them from the High Seas seller through Angadias/Courier to show the sale of goods, and the money was then being deposited in cash in their respective banks and transferred back to the accounts of the High Seas sellers. It was clearly brought out that the yarn imported duty-free was being diverted without being put to use for the intended purpose, in contravention of provisions of Customs Act, 1962. Searches were made by DRI officers at different premises declared by M/s.Shree Maruti Impex and M/s.Ravi Enterprises and it was noticed that neither of the firms was functioning. Further, no records or documents pertaining to either of the above mentioned firms were recovered and it therefore appeared that the addresses declared by them for obtaining Advance Authorization Scheme were fake. Investigations revealed that five firms namely M/s.Nupur Impex, Prachi Silks, Shreepal Silk & Sarees, Subham Enterprises & Trimurti International sold the consignments covered under 10 Bil....
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....er the representation and pass orders on merits and in accordance with law, within a period of 6 weeks from the date of receipt of copy of the High Court's order. Prior to disposing of the representations of the High Seas sellers in compliance of the High Court's order, the Commissioner of Customs (Seaport-Exports) extended the period for issue of show cause notice in respect of seized goods under Section 110 (2) of the Customs Act, 1962 by another six months. Before the Commissioner (Imports), the High Seas sellers raised the plea that although they had sold the Mulberry Raw Silk Yarn to M/s.Shree Maruti Impex and M/s.Ravi Enterprises, they had not received payment from them; that they were still in possession of the original documents viz. Bill of Lading to prove their title to the goods; that they were eligible to claim the ownership of the goods and file Bills of Entry in their names and therefore they may be permitted to file Bills of Entry in their names after the amendment of IGM and after cancellation of the Bills of Entry already filed by High Seas buyers. 4. The adjudicating authority vide the impugned order has (a) allowed the prayer of the High Seas sellers by directin....
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....pect of the seized goods without giving proper justification as to why the Bills of Entry already filed by importers i.e. M/s.Shree Maruti Impex and M/s.Ravi Enterprises, should be cancelled. After purchasing the impugned goods on High Seas Sale basis under a valid sale agreement signed by both the parties and on the strength of the IGM filed in their name by the steamer agents, M/s.Ravi Enterprises and M/s.Shree Maruti Impex have filed the impugned Bills of Entry and thus claimed themselves to be the importers and owners of the impugned goods. Further, they have never disowned their title to the seized goods. When the title has not been relinquished by the importer on record nor they have been heard, the Commissioner grossly erred in ordering cancellation of the originally filed Bills of Entry and permitting the High Seas sellers to file revised Bills of Entry in their own name. The order-in-original is silent on all the above issues. iii) The Order-in-Original suffers from non- application of mind by the adjudicating authority. While clause (a) of the order portion of the O-in-O orders that Bills of Entry (without quantifying the number of those Bills of Entry) already filed by ....
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....ing for substitution of the notified importers by the High Seas sellers without giving any findings/reasons for conferring the ownership title on the High Seas sellers. vi) The adjudicating authority has erred in ordering that the Bills of Entry already filed by M/s.Ravi Enterprises and M/s.Shree Maruti Impex may be cancelled. These two importers have never requested for cancellation of the Bills of Entry filed by them. There is no provision in law which authorizes the Commissioner to cancel the Bills of Entry suo motu, more so when the importer who filed Bills of Entry has not asked for the cancellation of the same. vii) The adjudicating authority erred in not noting the payments made by M/s.Ravi Enterprises to the High Seas seller (vide RTGS payments dated 04.03.2010, 05.03.2010, 06.03.2010, 08.03.2010, 11.03.2010, 17.03.2010 for a total amount of Rs.99,11,502/- to M/s.Prachi Silks Mills, RTGS payments dated 08.03.2010, 09.03.2010 for a total amount of Rs.47,00,000/- to M/s.SR & Co., RTGS payment dated 18.03.2010 for an amount of Rs.15,00,000/- to M/s.Trimurti International, RTGS payment dated 19.03.2010 for an amount of Rs.9,00,000/- to M/s.Shreepal Silk Mills and payments mad....
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....amined before allowing any amendment of IGM as per Section 30 (3) of the Customs Act, 1962. The issue relating to amendment of IGM has been settled by the Tribunal in the case of Biren Shah Vs Collector of Customs, Bombay in 1994 (72) ELT 660 (Tri.) vide para 10.4 whereof, it is cleared held as follows : - Section 30 (3) clearly envisages that only if the proper officer is satisfied that there was no fraudulent intention, he may permit the amendment. Here the undisputed factual position is that the goods were sought to be imported in the name of M/s.Vikram Overseas solely for duty benefit and the amendment is sought tobe moved for substituting Vikram Overseas by Shri Biren Shah, when the fraud was detected. Hence the officer is well within the provision of Section 30 (3) of the Customs Act to reject the request for amendment, even if it had moved by the Steamer Agent---. The adjudicating authority erred in not following the above legal position. xi) The adjudicating authority erred in not considering the fact that the judgement of the apex court in the case of Union of India Vs Sampath Raj Dugar [1992 (58) ELT 163 (SC)] which was relied upon by the High Seas sellers, cannot be m....