ORDER
G.N. Srinivasan, Member (J)
1. There are three applications for stay. Since the matter falls in a narrow compass, I have takn the 3 appeals for disposal after waiving the pre-deposit.
2. In these cases, M/s. Croslands Research Laboratories Ltd., a division of Ranbaxy Laboratories received certain shipping documents mentioning that certain goods called “artesunate” had arrived at Mumbai sometime in the month of June, 1997 valued at about Rs. 22 lakhs. The invoice as revealed in page 11 showed that the goods have been exported from Hanoi, Vietnam in the name of Positive Health Care Pvt. Ltd., Australia. It is not clear from the papers before me as to how the appellants have filed the bill of entry in this case without proper endorsement by Positive Health Care Pvt. Ltd. It is the contention of the appellant that the goods were not imported by them. The supplier i.e. Vietnam firm agreed to take back the goods. The appellant stated that the Vietnam’s firm informed the appellant that the goods “artesunate” is a salt ARTEMISININ and it is used as anti-malarial like that of Quinine, Chloroquin etc. The appellants approached the Drug Controller for permission under Section 122 of Drugs & Cosmetics Act and the paper revealed that no such permission has been granted. The appellants’ main contention before Customs authority was that they are trying to re-export the goods. The another submission made by them was that they have not imported the goods. They have relied on the judgment of the Western Regional Bench in Jagkumar and Co. P. Ltd. v. C.C.E., -1998 (99) E.L.T. 539 and Gunwantrai J. Shah v. C.C.E. -1998 (99) E.L.T. 625 for non-levy of penalty and redemption fine where there is re-export.
3. Shri Patwari, ld. DR, reiterates the submissions and reasoning of the lower authority.
4. I have considered the rival submissions. Admittedly the invoice is not in the name of the appellant. It is in the name of Australian Company. The appellants before me have filed the bill of entry for home consumption which shows that they have to clear the goods from Customs and thereafter arrange for re-export. The case law cited by Vishwanathan will not be applicable because in the first case Jagkumar & Co. -1998 (99) E.L.T. 539, it was a case of cancellation of the order for the imported items due to delay by Customs on the issue of classification. Here the facts are not like that. The other case is regarding misdeclaration of the value and here it is not so. The case is the authority for the proposition what it does. One particular difference in facts between the precedent cited and the case before us may make world of difference. Therefore I cannot agree with the contention raised by Mr. Vishwanathan and I therefore distinguish the judgment cited before him.
5. The argument of the appellant that they are meant for re-export is belied that they have filed Bill of entry for Home consumption. Re-exportation takes place only after it is cleared from Customs. Order of out of charge is made by Customs under Section 47 of the Customs Act. Once out of charge is ordered, the man who files the bill of entry becomes the owner of the goods. The property in the goods is given to him. The fact that the price is not paid by the importer that action which will lead to the filing of suit by the supplier against the receiver of the goods does not mean the duty, penalty and fine is not leviable. That is independent of these goods. Suppose the appellant before me after clearance of the goods is unable to re-export, what happens? Can we waive the penalty and fine? In my view, we cannot. After the goods are cleared, it will be not possible for the Customs authority to collect the fine and penalty. I am therefore of the view that the argument of the appellant in this case cannot be accepted as the appellant has filed a bill of entry and represented before the Customs authority that they are the importers. The case of the appellant is not supported by law and evidence. Hence all the three appeals stands dismissed. Since the appeals stand dismissed, the stay petitions also stand dismissed.