TaxTMI 
TaxTMI 
2026 (3) TMI 1094
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....Geo Chem Middle East, Dubai were issuing PSIC without inspecting the cargo at the port of loading/ shipper's yard, DRI searched the office premises of M/s. WLSI, New Delhi and investigated the matter. They recorded the statements dated 07.09.2012 of Shri Dinesh Aneja, Prop. of M/s. WLSI who stated that New Delhi and Sydney are the branches of M/s. WLSI, USA. He stated that DGFT vide circular dated 21.11.2005 had suspended authorisation of WLSI, Group and affiliates USA and again on 04.02.2011 authorisation of WLSI, Sydney was temporarily suspended. They found that the importer had submitted another PSIC issued by M/s. Geo Chem, Middle East, Dubai without physical inspection of the cargo at the port of loading. Statements of Shri Pramodkumar Ramanlal Agarwal, Director of the Appellant Company and statements of Shri Vishal Gupta, Vice President of M/s. Vistas Trading, New Delhi (who was indenter in this case), were recorded on the basis of which the department issued Show Cause Notice to the appellant proposing confiscation of seized 25.175MT of aluminum scrap 'Terse' alongwith penalty under Section 112(a) of the Customs Act, 1962. It also proposed penalty on Shri Pramod Kumar Ramanl....
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....iable to confiscation under Section 111, or abets the doing or omission of such an act shall be liable to penalty as prescribed therein. Since the acts are not liable to confiscation, penalty on them under Section 112(a) is also not sustainable. (c) They have complied with prescribed requirement and therefore, are not guilty of contravention of Foreign Trade Policy. The case has been made on the basis of statements dated 25.09.2012 of the Director of the appellant Company that it was informed by the indenter that no pre-inspection was done by M/s. Geo Chem, Middle East, Dubai for the said consignment which was only on hearsay. (d) Para 18.2 of the Order-in-Original dated 13.06.2014, at point No.7, mentions that PSIC was issued by M/s. Geo Chem Middle East, Dubai after due inspection of the consignment thus, it is not a fake or fabricated certificate. There are numerous judgments which lay down that goods cannot be confiscated and penalty cannot be imposed when there is no act or omission or malafide. (e) The consignment in question was intended to be cleared after submission of a pre-shipment inspection certificate from an agency approved by DGFT which sh....
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....he process of inspection of goods at the load port by the representatives of the approved Agency. In fact, both the certificates were valid on the date of import and on a query raised by the Customs on the certificate issued by M/s. Geo Chem Middle East, Dubai, the importer had submitted a clarificatory letter dated 13.09.2012 issued by the issuer of PSIC themselves. (d) Penalty has been imposed on him under Section 112(a) of the Customs Act, 1962 for abetment in issuance of fraudulent PSIC whereas the fact is that the importer had submitted valid PSIC to the Customs and none of them were fake. (e) DGFT Circular No. 16(RE-2010)/2009-2014 dated 04.02.2011, directs not to accept PSIC issued by WLSI, Sydney, Australia. Therefore, restriction is imposed on acceptance of PSIC issued by WLSI, Sydney and not on those issued by WLSI, New Delhi which is enlisted at Sr. No. 94 of the appendix 5 of the hand book 2009-2014. The imports were made under proper documents including mandatory PSIC and there was no intention to evade duties in any manner and hence, impugned goods are not liable to confiscation. His role was confined to help the supplier and meet the importer's requ....
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....l Agarwal, (Director of the Appellant Company) and the statements of Shri Vishal Gupta, (Vice President of the Indenting firm M/s. Vistas Trading, New Delhi) wherein they accepted that PSIC No. 08186/K/D/107611 dated 27.06.2012 issued by M/s. Geo Chem Middle East, Dubai was without proper inspection of the goods at the load port. As regards, PSIC No. 08186/K/D/107611 dated 27.06.2012 issued by WLSI, it was stated that the goods were inspected by Mr. Jose who was not the authorised person/ Inspector for Dubai and thus, the said PSIC is also not valid/genuine. For these violations, the importer as well as those who were involved, are liable to penal action. He therefore, prays to uphold the orders of the lower authority and dismiss the appeals. 5. We have heard rival submissions. The appellant have imported Aluminum scrap 'Terse' from M/s. RKG International, FZE, Dubai through Indent or M/s. Vistas Trading, New Delhi. 5.1 As per Hand Book of Procedure 2015-20, para 2.54(b)(i) deals with import of waste and metallic scrap. It mandates submission of pre-shipment inspection certificate in specified format issued by any of the Inspection and Certification agencies to the effect tha....
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....012 issued by WLSI, New Delhi to the importer as well as indenter but based on experience with Customs authorities, CHA advised to obtain PSIC issued by another Agency as PSIC issued by WLSI was not being accepted by the Customs. The importer therefore contacted the indenter who in turn requested the shipper to provide PSIC by any other approved inspection agency. M/s. RKG International, FZE, Dubai thereafter supplied PSIC dated 22.06.2012 issued by M/s. Geo Chem Middle East, Dubai which later on, was also found to be incorrect. Thus, both the PSIC certificates provided by importer for the imported Aluminum scrap were invalid. 5.3 The appellant relied on the decision in the case of Alang Meta Exim Pvt. Ltd Vs. CC (2015 (328) ELT 665 (Tri. Ahmd.) wherein it is held that the importer have taken precaution and produced pre-shipment inspection certificate from authorised agency and copy of contract with foreign supplier as per procedure prescribed by DGFT. They are not required to take any further precaution. Confiscation of waste and scrap and imposition of penalty not sustainable. They also quoted the decision of Hon'ble Gujarat High Court in the case of Commissioner of Custom....