TaxTMI 
TaxTMI 
1988 (1) TMI 49
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....asis. The said goods were shipped by the said foreign supplier from Singapore to Calcutta on 6th September, 1985. 4. The said goods arrived at the Port of Calcutta on or about 28th September, 1985. According to the petitioner, the said goods were imported by the petitioner in the ordinary and usual course of his business under REP Transferable Licence in terms of Appendix 17 of the Import and Export Policy-April, 1985 to March, 1988. 5. After the arrival of the said goods at the Port of Calcutta, and before the petitioner could fie the Bill of Entry along with Import Licences i respect thereof, bales out of 94 bales of the said goods were seized by the Customs authorities on 10-10-1985. The remaining one bale of the said goods was thereafter seized on 5-12-1985. After the seizure of the said goods the authorities kept the said goods under their custody and control. It is significant that although the said goods were seized by the concerned Customs authorities in October and December 1985 as aforesaid, the petitioner was not favoured with any seizure list by this concerned authorities in that behalf. 6. Thereafter, on or about 19-11-1985 the petitioner received a summons under se....
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....ct, 1962 and a personal penalty of Rs. 15,000/- was imposed under Section 112 of the said Act. This order is under challenge in the writ application. 11. To appreciate the contention it is necessary to set out the relevant part of the show cause notice and the adjudication order. 12. The show cause notice as indicated earlier was issued to 12 parties and one of them is the petitioner. The address of the petitioner has been given as 35/1, Chowringhee Road, Calcutta. So far as the petitioner is concerned it has been alleged hi the snow cause notice. Inter alia. as follows: "Sri S. M. Daftary, proprietor of M/s. Crescent Commercial Corporation could not prove by any evidence of existence of the said firm at 21/A, Canning Street, Calcutta-1. He also failed to produce any trade licence in the name of the said firm to show its place of business of the said address. As from the available evidence concerning 94 bales of staple pins, the importers M/s. Crescent Commercial Corporation are not existent at the notified address at 21/A Canning Street, Calcutta-1, which indicates that the importer is a fictitious party. This inference further gets corroborated from the evidence that their ov....
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....poration Shri S. H. Daftary has stated inter alia, that the goods were sent by the foreign suppliers on their own initiative and the responsibility for anything done in violation of the provisions of law are not their. In the statement before the Customs officer on 4-12-1985, Shri Daftary stated inter alia, that M/s. Syarikat Nyalchand Motichand Sd. D. Bhd. of Singapore sent a letter to him on 31-7-1985 showing their interest in sending staple pins and that in reply they expressed their inability to clear the consignment on documents against payment basis because of their financial condition; that on telephone conversation with the exporter at Singapore, he expressed that he could accept the offer if they agreed to send the consignment on D/A basis and not on D/P basis. Shri Daftary added that although there was no more correspondence, but astonishing, in the month of October, he came to know from the overseas supplier over phone that they had already despatched the consignment although no final negotiation was done. It is very surprising that the overseas supplier had sent the consignment to M/s. Crescent Commercial Corporation without getting a written confirmation and even after....
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....e. The licence is usually filed along with the Bill of Entry. But before the bill of entry could be filed, the goods were seized. 16. The third ground taken in the show cause notice is that the importer is a fictitious party. According to Customs in absence of bankers to negotiate financial transactions involved in the import of any consignment from overseas, without showing the name of the Indian Importer is a mysterious circumstance rendering the goods liable to confiscation. This according to the ld. Counsel is no ground at all. In the Bill of lading and related import documents and in the import Manifest the name of the petitioner appears as party to be notified at Calcutta Port and In any event merely on suspicion no import can be held to be invalid or illegal. 17. In the adjudication order the Collector of Customs had admitted that the allegation that the importer is not in existence at the notified address is not correct. The Collector has, however, proceeded on the footing that the consignee's name is not found in the cargo receipt or in the import manifest and that the banker's name was not found and that the Import licence was not available. These are the circumstances ....
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....of the Bill of Entry. The contention that there was no import licence at the material time is not correct. After the personal hearing on 25th August, 1986 the petitioner made a representation on 3rd January, 1987 when he submitted that he has requisite Import licence and sufficient evidence to show the CIF value of the goods. The said letter is as follows : "Re : Show cause notice No. 5-1 (vii) 75/85 p dated 1-4-1986 issued by the Assistant Collector of Customs for preventive adjudication, Customs House, Calcutta-1. With reference to the above noted seizures and show cause notice and also our written explanation 10-6-1986 and the personal hearing granted to us on 25-6-1986, we have to iform you that we are willing to take clearing of the seized consignment after observation of Customs formalities and subject to order as you may be pleased to pass in the case. We have further to inform you that we have not requisite import licence and we have got sufficient evidence to show that CIF Calcutta value of the said goods will be about 28/- US Dollars per Carton of 40 boxes (100 pins in packet and 20 such packets in a box). In the premises, we would pray that your honour would be graci....
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....tor of Customs (Preventive). The Collector of Customs (Preventive) did not also make any enquiry from other wing of the department whether the importer has any licence or not. 29. It has been alleged in the adjudication order that the import is unauthorised on the ground that the name of the Importer does not appear anywhere. It will be evident from the Bill of lading issued by the steamer company at the time of loading subject cargo that the name of 'notify party' is M/s. Crescent Commercial Corporation, 21/A, Canning Street, Calcutta, The import therefore cannot be unauthorised as the name of the Importer appears in the Bill of Lading and the manifest. The importer was having Import licence which could not be fled because prior thereto the manifest goods were seized by the Collector of Customs (Preventive). The petitioner was having requisite licence when the importation was made. In my view it cannot be said that the import was unauthorised. The order of adjudication is therefore, illegal and should be set aside. 27. Another contention has to be disposed of. It has been contended that the petitioner has alternative remedy before the Tribunal. It is true that there is an altern....