ORDER
Shri S.L. Peeran
1. Both the appeals arise form question of law and facts and hence they are taken up together for disposal as per law.
2. The appellants are suppliers of Douppion Silk yarn. They had consigned the same to the Indian importer. The Indian importer was one M/s. Woodstock Silks Pvt. Ltd., Bangalore, who did not file Bill of Entry and therefore, the Additional Commissioner vide his Orders-in-Original No. 171/96-AP & 172/96-AD both dated 22.5.96 directed for confiscation of the imported goods. As the importer had not filed licence and the item required clearance only on licence and hence there was violation of provisions of Section 11A (a) of the Customs Act read with Import Control Order/Import Export policy and Foreign Trade (Development & Regulation) Act, 1992.
3. The supplier after coming to know about both the Orders-in-Original, filed appeals before the Commissioner (Appeals) stating that before the Orders-in-Original were passed, the supplier contacted another buyer as the said importer did not have licence and was not willing to purchase the goods. The second supplier namely M/s. Mangalam Impex filed Bill of Entry on 20.5.96 while in respect of OIO No. 171/96-AD dt 22.5.96, Bill of Entry was filed on 13.1.96 by M/s. Seidenstoffe International, which is much later the OIO was passed. The Commissioner noted in the order only about this Bill of Entry i.e. 13.6.96 having been filed after the OIO No. 171/96-AD dt 22.5.96 was passed and hence confirmed the absolute confiscation of the impugned goods by Addl. Commissioner and therefore held that the ownership is vested with the Govt. Therefore, he has held that Bill of Entry filed and admitted were obviously infructuous. He has also noted that the amounts had already been received by the supplier and therefore supplier cannot raise any grievance.
4. Arguing for the appellants, Ld. Counsel Ms. Shamala submits that it is now well settled by the judgment of the Apex Court as rendered in the case of UOI Vs SAMPAT RAJ DUGAR-1992 (58) ELT 163 (SC) and that of UOI AND ANOTHER Vs MUSTAFA & NAJIBAI TRADING CO.AND OTHERS reported in (1998) 6 Supreme Court cases 79 that the owner of goods are required to be issued with notice before confiscation of the goods is ordered as he has got precedence over the goods having title over the same. She points out from the judgement of UOI Vs SAMPATH RAJ DUGAR (supra) that Apex Court has held that if the owner’s right has not been taken into consideration, that it would not be conducive to International trade. She submits that Bill of Entry had been filed by M/s. Mangalam Impex Pvt. Ltd much before the impugned order was passed and therefore in so far as the OIO 172/96-AD dated 22.5.96, The Additional Commissioner’s finding that no other person has filed Bill of Entry is not correct and requires to be set aside. She submits that he owner i.e. present suppliers ought to have been heard and as there was violation of Section 125, proceedings are bad in law. She therefore prays for remand of the case, so that appellants can establish that they have not received the value of the goods as wrongly noted by the Commissioner (Appeals) in his order.
5. Ld. DR Shri S.Sudarsan submits that goods are liable for confiscation, if the same have been imported without a valid licence. In the present case Duppoin Silk required a licence. As the concerned importer had not filed the Bill of Entry, alongwith licence, therefore the goods were rightly confiscated. He submits that the Bill of entry should have been filed within the stipulated period as laid down under Section 48 of the Act. Therefore no plea can be raised against the Addl. Commissioner for having passed the order of confiscation in the matter. However, on being pointed out that in case of OIO 172/96-AD dated 22.5.96, the Bill of Entry had already been filed by M/s. Mangalam Impex Pvt. Ltd on 20.5.96 and as to whether there was error in the Additional Commissioner’s order, Ld.DR, on perusal, fairly submits that supplier as per the records filed by the appellants, it is seen that that Mangalam Impex had filed Bill of Entry on 20.5.96 before the order-in-original was passed. However, the Commissioner has not taken into consideration these factors and given the findings. On a specific query being posed with regard to judgements cited by Ld. Counsel, Ld.DR submits that owner is generally required to be heard as in terms of the judgement cited.
6. On careful consideration of the submissions, and on perusal of the impugned orders, we notice that in one of the Orders-in-Original i.e. 172/96-AD dated 22.5.96 a fresh Bill of Entry had been filed by M/s. Mangalam Impex Pvt.Ltd on 20.5.96. The finding of the Addl. Commissioner that no Bill of Entry had been filed by any other person as against this consignment is not a correct finding and therefore order of confiscation without taking into consideration the Bill of Entry filed by M/s. Mangalam Impex and also the fact that notice of hearing was not issued to the owner i.e. supplier appellant has made the order bad in terms of two Apex Court judgements cited by Counsel. With regard to other appeal is concerned, Bill of Entry was filed on 13.6.96 much after the OIO was passed. However, in terms of the Apex Court judgement the owner of the goods i.e. suppliers ought to have bene heard in the matter. They have filed affidavits to show that they have not received the value of the goods and transaction had not been completed and in that context they had precedence over the matter and they should have been heard by issue of notice in terms of Sec. 126 of the Customs Act, 1962. In view of law laid down in the two noted Apex Court judgements and the original authority not having heard the supplier, therefore there is clear violation of principles of natural justice. In that view of the matter, the impugned orders are set aside and matter remanded to the original authority to reconsider the claim of appellants in the light of evidence that would be adduced by them to show that the goods were not confiscable and that they are entitled to the value of goods which have been auctioned and appropriated to Govt. of India.
7. Thus, the appeals are allowed by way of remand to the original authority for de novo consideration.
(Pronounced and Dictated in open court)