ORDER
S.S. Sekhon, Member (T)
1. A consignment of rough diamonds belonging to the appellants herein, a company registered in Belgium, was sent to Mumbai by Air. The said consignment was exported on or about 27.2.2001 by the appellants and the goods were to be purchased by the consignee one Mr Vijaybhav in Mumbai. On or about 28.2.2003 M/s Vijaybhav appears to have been searched by the Customs department in connection with alleged Forged licence case for importation of consignment of rough diamonds. The appellant on coming to know about this aspect of the conduct on part of the importers in India, immediately instructed their Bankers and the local Indian Bank to return the documents with respect to the consignment to the Bank and close the file. They also addressed various messages to the carriers of the consignment not to deliver the parcel to the consignee. The local Indian Bank returned the documents to the appellants’ Bankers and no transaction or payment has been made or effected for the said consignment. 1.2 From 6.3.2001 right up to 3.5.2004 appellants have addressed several letters to, amongst others, Deputy Commissioner of Customs, Commissioner of Customs, Embassy of India in Belgium, Chief Commissioner of Customs and the Finance Minister, Government of India pointing out that the shipment be released to them or be permitted to be reshipped to them. It was specifically pointed out in these letters that the Bank documents were returned without payment and that the appellants remained the owners of the goods. It was intimated that though a Show Cause Notice has been issued, the said M/s Vijaybhav and the appellants consignment was not under investigation it was also specifically mentioned that the appellants were not made party to the enquiries against the said M/s Vijaybhav. The said letters and requests in writing to various authorities as well as the Indo-Belgium Diamonds Association and the Antwerpen Diamantbank NV, and produced before us. The appellants submit that they received no response whatever to any of the said letters from any authority. They also stressed that the representative personally visited various Customs authorities, numerous time, but were not provided with any information or assistance and that they alleged that the authorities wilfully and deliberately failed to inform them about the Show Cause Notice issued to M/s Vijaybhav or and provided with details of the same. A copy of the said Show Cause Notice issued to M/s Vijaybhav was not issued to them on request as they were considered to be not a party to the Show Cause Notice was the reason given. Therefore, the appellants are under the reasonable belief that the Show Cause Notice did not pertain to the diamond consignment sent on 27.2.2003.
2.1 On learning that an order has been passed sometime in May 2004 and their consignment, as sent by them has been ordered to be confiscated. They made efforts to obtain a copy of the said order and with great difficulty, from some other party, they obtained the same and learnt that the said consignment was seized by Customs authorities by a Panchanama dated 16.4.2001 and an order for absolute confiscation of the said diamonds has been passed. The appellants have therefore filed this appeal.
3. After hearing both sides, and considering the issues, it is found that:
(a) the appellants have made all efforts to participate in the enquiries as regards the said diamond consignment claimed by them. In spite of written efforts to all authorities in Bombay Customs, they were not asked a single question as regards the status of the said import, even though vide Panchanama dated 16.4.2001, the said goods were seized by the Customs authorities. It is also on record that in spire of the best efforts made by the appellants to obtain the Show Cause Notice and there by participate in the proceedings, they were kept out of the said adjudication proceedings by design or callousness. We cannot uphold such an act of the Customs Department. The deliberate efforts to keep the appellants away from an adjudication proceedings resulting in confiscation of the goods which are being claimed by the said exporter in Belgium even after coming down to India and meeting the officers speaks of the hidden desire of certain officers to exclude the claimant from claiming the goods. There is no reason why a person who claims the goods under seizure should not be questioned and enquiries be launched with him as to establish or rule out such claim. The facts of this case indicate that the appellant could have been given a Show Cause Notice so that they could have an opportunity to explain their conduct and establish the claim of innocent import into India. This has been denied.
4. In the facts of this case, we find that there is a denial of natural justice to the appellant and gross violation by the proceedings held which result in ordering confiscation of the said diamonds claimed by the appellants herein without hearing them. Such an order of confiscation cannot be upheld. The diamonds claimed by this appellant i.e. a quantity of 21075.10 Cts valued at Rs 7545148 seized vide Panchanama 15.4.2001 and ordered to be confiscated vide para 10 under the Customs Act, 1962 is required to be set aside and denovo adjudication ordered.
5. We have considered the plea of the Ld D.R. He is claiming that the appellants have no locus standi as they are not persons aggrieved. We cannot agree, that the appellant herein is not a person aggrieved. The appellant has since the date of import making determined efforts to get the goods cleared by participating in the proceedings. They have been kept away from the same. The bonafides of the appellant to follow the law cannot be questioned. We find that the appellant herein is a person aggrieved against by an order of confiscation arrived behind his back as regards goods which he claims to be his own. His claim requires to be examined and it has to be determined whether he is an ‘unpaid seller’ as provided under the law. He has to be heard in the matter and documents and other submissions he makes have to be considered and thereafter his plea to clear the goods into India or to reship them has to be considered and granted as per the law and the facts so established.
6. In view of our findings we would set aside the order and remand the matter as regards these diamonds and remand the matter back to the Commissioner who should give a copy of the Show Cause Notice to the appellant and thereafter determine the request as per the law and the facts in this case.
7. Appeal allowed as remand. Since the matter is pending for long time and considering the value of the diamonds involved, we would like to place the Commissioner on certain time bound readjudication of this matter now being remanded to him. We would consider the time of four months from the receipt of this order would be sufficient for this purpose of readjudication.
8. In view of our remanding this matter, we refrain from arriving at other findings on the issues as raised before us which the appellants are free to raise before the adjudicator.
9. Appeal allowed as remand in above terms.
(Pronounced in Court on 08/04/2005)