ORDER
P.K. Desai, Member (J)
1. All the three appeals are directed against the Order-in-Original Nos. 10-44/84 dated 27.1.1989 of the Collector of Customs, Airport, Bombay, so far as it relates to holding the six consignments declared to contain “oxytctracyclinc HCL 1P6(S” imported by the appellants M/s. Kasinka Trading (Appeal No. 515/89) as liable to confiscation and ordering recovery of various amounts, as specified in the order lor each of the six consignments by enforcement of bank guarantee furnished along with ITC Bond, at the time to provisional release, as redemption fine, and also imposing personal penalties of Rs. 1,00,000/- on M/s. Kasinka Trading, Rs. 3,000/- on M/s. Jaggat Singh Sons and Bros, (appeal No. 513/89) alleged to be the brokers, and Rs. 5,000/- on Mr. Sanlokh Singh (appeal No. 514/89) the then Manager of the Punjab and Sind Bank.
2. Vide the impugned order, penalties are also imposed on M/s. I.R. Sharma & Co., as also Mr H.S. Bhatia, but they do not appear to have preferred any appeal against the order.
3. The appellants M/s. Kasinka Traders imported all the six subject consignments, which landed at Sahar International Airport, Bombay, on various dates, and the said appellants through their CHA, filed six Bills of Entry claiming clearance of five of the said six consignments against Licence No. P/W/0338376/C/XX/81 dated 28.12.1981 and of the sixth consignment against Licence No. P/X/10390376/C/XX/81 also dt. 28.12.1981. Both the licences were additional licences, under Product Group ‘A’ Merchant Exporters, bearing endorsement for import of items of appendices 5 and 7 excluding items of Appendix 26 of the Import Policy 1981-82 with further endorsement of same having been issued under para 186 of Policy 1981-82. The subject items were importable under the said licences during the policy period 1981-82, during which the subject licences were issued. During the period of Policy 1982-83, however, item “oxytctracycline” was brought under Appendix 4 (Non permissible item) and was placed at serial No. 45, and vide Public Notice 1TC No. 21/82 dated 19.4.1982, it was provided/clarified that salts/esters of oxytctracycline were also banned. The subject consignments though landed at Bombay on different dates, they all were subsequent to the issuance of the ITC Public Notice No. 21/82, Technical Officer, Sahar Air Cargo Complex, examined the consignments, and vide bis letter dated 7.7.1982, certified the imported goods as salts of oxytctracyclinc having separate monographs appearing in USP and BP. Further enquiries made revealed that only one Letter of Credit was opened for all the six consignments, and that too, on 4th or 5in May, 1982, but was made ante dalcd to 8.4.1982, where one Mr. Obcroi of M/s. Jaggat Kishorc Sons & Bros., so also Mr. Santokh Singh the Manager and Mr. Bhalia, officer in Punjab and Sind Bank had also played important roles. It was also revealed lhat the invoice issued by M/s. J.R. Sharma & Co., the local agents of the foreign suppliers, was also ante dalcd. Detailed investigations were carried out and finally show cause notice dt. 31.3.1984 was served on all those allegedly concerned with the import of these consignments, which was alleged as unauthorised, in view of the then prevailing Policy provisions. Appellants M/s. Kasinka Trading in reply thereto, pleaded lhat they held valid licences as issued during the Policy period 1981-82, and that those licences had remained unutilised, and when under the Policy 1982-83 several transitional concessions were given and oxytciracyclinc hydrochloridc was brought under OGL with effect from 5.4.1982, when the new policy was announced, Mr. Obcroi of M/s. Jaggai Singh Sons and Brolhcrs, approached them, and through him, they entered into contract for import of subject goods, with M/s. J.R. Sharma & Co., the local agents of foreign suppliers, on the same day, and opened Letter of Credit with Punjab and Sind Bank on 8.4.1982. They denied the allegations levelled against them, and pleading that the consignments were legally imported, prayed for dropping the show cause notice and release of the same. Appellants M/s. Jaggai Singh Sons and Brothers pleaded non-involvement, except to the extent that they had acted as the brokers in the transaction. They however denied the allegation of ante dating of the documents. Appellant Mr, Saniokh Singh, the Manager of the Bank, denied the ante dating of the Letter of Credit and pleaded his non-involvement. The parties were given personal hearing. The adjudicating authority, however, came to the conclusion lhat the subject item was not importable under the licences produced, and also held the documents to have been ante dated, and passed the impugned order.
4. Dr. N.R. Kantawala, the Ld. Advocate for the appellants M/s. Kasinka Tradings, pleaded lhat the appellants admittedly possessed licences issued during the Policy period 1981-82, and as per the said policy provisions, by virtue of endorsement for para 186 of the Policy Book, they were eligible to import the subject goods. He submitted that, as per the transitional provisions, under the policy 1982-83, which became effective w.c.f. 5.4.1982 the appellants were still eligible to import the subject goods, as what was placed under Appendix 4 (banned items) was only oxytctracyclinc and not their salts and the ban on import of salts was placed only vide 1TC Public Notice No. 21/82 dated 19.4.1982, and pleaded that before that, the contract was already entered into and Letter of Credit was also opened. Pleading that the Public Notice, could not be only a clarifica-tory, but was in the nature of imposing ban, he referred to Para 218(4) of the Policy Book 1982-83, and submitted that wherever salts of the items were sought to be included, specific provision was made and in the said para, items of appendix 4 did not figure. He further pleaded that even otherwise, the licences held by the appellants were those issued under Policy 1981-82 and were not affected by any subsequent changes in the Policy, and referring to the Judgment of the Bombay High Court, in Climax Chemicals v.R. Gopalnaihan , pleaded thai point similar to one here was dealt with by the Bombay High Court, and the said court, while dealing with the same Public Notice, and its effect on the licence issued on or about 1.10.1981, held that the changes brought about by the said public notice could not affect the validity of the import licence. The Ld Advocate drew our pointed attention to the findings to the effect that irrespective of the suspicion said-to surround the date of placement of order by the petitioner and finalisalion of the Letter of Credit, the legal right to import was not affected. In his submission, the said decision was on all fours applicable to the prcsenl case, and as such, notwithstanding any other aspect, the import is to be held as permissible and the oalcr be set aside. Submitting on the merits of the case, Dr. Kantawala, pleaded that the documentary evidence did indicate that the entire transaction was complete by 8.4.1982, and there was no justifiable ground to hold the Letter of Credit to have been ante dated, and pleaded that even assuming, without conceding, that the date of opening of Letter of Credit was doubtful, then, in any case, the contract was duly entered into on 5.4.1982 and placing reliance on the CEGAT WRB decision in Gokulda.s Ilarbhagwandas v. Collector of Customs he pleaded that tiie date of firm contract would be the relevant dale. The Ld. Advocate also pleaded that Public Notice, could not alter or amend the policy provisions so as to affect licences issued vide Import Control Order.
5. Mr. A.V. Naik, the Ld. JDR, however, pleaded that the items imported did not fall within Appendix 5 & 7 of the Policy AM 1981-82 for which the licence was issued, and the subject import being in pursuance of endorsement of Para 186 of the Policy 1981-82, the same was not permissible under the new policy, as the item was placed under the list of banned items. Placing reliance on the Judgment of the Supreme Conrl in Union of India v. Godrej Soaps Pvt. Ltd. 1986 (9) ECR 1 (SC) : ECR C Cus 1190 SC ami in D. Navinchandra v. Union of India 1987 (11) ECR 824 : ECR C Cus 1249 SC Mr. Naik pleaded that under the Policy 1982-83, when the subject goods were imported, they were removed out of OGL list, and as such, they were not permissible under the licence. On merits, he submitted that the evidence on record clearly indicated that both, the invoice as also the Letter of Credit, were ante dated and were so ante dated to overcome the ban imposed on the import. In his submission, no interference was therefore called for.
6. In reply Dr. Kantawala, pleaded that if item was initially permissible, subsequent ban imposed could not affect the import, and referred to the Bombay High Court Judgment in layanl Vcgoils and Chemicals Pvt. Ltd. v. Union of India as also the Supreme Court decision in Mis. Bharal Barrels & Drums Mfg. Co. P. Ltd. v. Collector of Customs–.
7. Mr. P.V. Salhe, the Ld. Advocate appearing for appellants M/s. Jaggat Singh Sons and Brothers and Mr. Santokh Singh, endorsed to and adopted the arguments advanced by Dr. Kaniawala, and cited the decision of CEGAT-WRB in Gujarat Machinery Manufacturers v. Collector of Customs to plead lhal import licence was not governed by policy changes effected subsequent to the issue, unless such changes were retrospective. In his submission, this being the position, nothing was to be gained by ante-dating the indent and/or Letter of Credit. The Ld. Advocate, also referred to the letter dated 17.4.1982 from the foreign supplier confirming the contract and also mentioning about opening the Letter of Credit giving number etc. of the same and submitted that the allegation of ante dating of the Letter of Credit got falsified therefrom. He also referred to a letter dated 30.4.82 from M/s. Kasinka Tradings to substantiate his submission. He further pleaded lhal the show cause notice did not specify whether Clause, (a) or (b) of Section 112 of the Customs Act was invoked against the appellant and as such ihe proceedings be deemed to have stood vitiated. In his submission M/s. Jaggal Singh Sons and Brolhcrs, merely acted as brokers, and submitted that statement of Mr. J.R. Sharma, of M/s. J.R. Sharma & Sons ought not to be relied upon, as he was not the person who attended to the day to day business of the said firm, and that it was only Mr. P.L. Sharma, who was contacted and he had signed the contract. As regards Mr. Santokh Singh, he pleaded that no evidence existed on record to show that it was under his instructions that the Letter of Credit was opened, and was ante-dated, there was no evidence lo implicate Mr. Sanlokh Singh. He reiterated the plea that there being no ostensible gain by ante dating of Letler of Credit, the evidence adduced ought lo be examined in that light.
8. Mr. A.V. Naik, the Ld. JDR, however, pleaded that Mr. Obcroi of M/s. Jaggat Singh, is proved to have played very major role, and it was through the efforts by the firm lhal ante dating was done. He also staled thai undispuiedly the brokers were lo gel 30% as commission, which was rather unusual and indicalcd their personal involvement. As regards the Bank Manager, Mr. Naik pleaded lhal there were several corrections in official records, and the monthly statements, which also were corrected, went under his signature, and that papers for opening of Letter of Credit were initially received by him and sent to oihcr officers for due processing and opening of L/C.
9. From the submissions made and from what has been held by the Ld. Adjudicating authority some undisputed factual position be identified. Both the subject licences have been issued in the name of appellant M/s. Kasinka Tradings, and they are the importers. Both lhal licences have been issued during the Policy period 1981-82 and are valid for import of subject goods if the importation is within the policy period, 1981-82. Though dispute exisis in relation to the placement of order and opening of the Lcitcr of Credit, ii is not in dispute that they were opened during the policy period 1982-83, and lhal the actual import i.e. entry of the goods into India was subsequent to even issuance of the I.T.C. Public Notice No. 21/82 dated 19.4.1982. There is also no dispute over the issue that oxytciracyclinc was included in Appendix 4 (list of banned items) in Policy Book 1982-83 w.c.f. 5.4.1982, and sails thereof were banned by virtue of the aforementioned ITC Public Notice. The identity of the item imported being “oxylclracyclinc HCLIP 66 and the finding in the Tesl Report of the Technical Officer dt. 7.7.1982 about the same being sails of oxytciracyclinc having separate monograph appearing in USP and BP, is also not under dispute.
10. Bombay High Court, in Climax Chemicals v. R. Gopalnalhan had before it the import of oxytciracyclinc hydrochloridc BP/USP/1P, a sail of oxylctracyclinc, for which clearance was sought under the licence issued to an Export House during the Policy period, 1981-82, having endorsements identical to those found on the subject licences. Though doubt was raised in that regards by the Department, on the face of it, the order for import was placed before issue of the Public Notice ITC No. 21/82 dated 19.4.1982 but the consignments arrived subsequent thereto and objection raised was about non availability of the licence, on the date of clearance. On the importer approaching the High Court, the said court held that Appendix 4 of the Policy 1982-83 as originally implemented w.c.f. 5.4.1982, did not ban the salts, and the omission was sought to be made good by issuance of the Trade Notice, and referring to the Supreme Court judgment in Mis. Bharat Barrel and Drum Mfg. Co. Pvt. Ltd. v. The Collector of Customs AIR 1970 Supreme Court 704 : CCR C Cus 767 SC as also to some other decision including their own in Jayant Veyoils and Chemicals (P) Ltd. v. Union of India , the said High Court held that Public Notice could not have retrospective ciTcct, and also held that the licence having been issued under the statutory powers conferred vide Section 3 of the Imports and Exports (Control) Act, and that the ITC Public Notice not being the one in the form of Notification issued under the statutory powers of the issuing authority, could not affect the right invested under the licence. In so holding, the said Court also referred to the decision of the Supreme Court in Rajprakash Chemicals v. Union of India but distinguished the same by holding that the issue there was of a specific ban upon importability of certain commodities pursuant to exercise of certain legislative powers and not the administrative ones.
11. Reading of the said Judgment however indicates that the attention of the said High Court possibly was not drawn to certain salient aspects. The licences issued (as is apparent from the subject licences, which too are issued to Export House, and during the same Policy period) bear an endorsement on the face of it, which reads:
The licence is granted under the Govt of India/Ministry of Commerce and Industry order No 17/55 dated the 7th December, 1955, as subsequently amended, issued under the Imports and Exports (Control) Act, 1947 (XXIII of 1947) and is without prejudice to the application of any other prohibitions or regulalions affecting importation of the goods, which may be in force at the lime of their arrival.
This condition being the part of the main body of the licence cannot be overlooked or ยป taken as having no or little significance. A plain reading of the condition indicates that importabilily of the item has to be subjected to the regulations or prohibitions existing of the day of “arrival” of the goods. The Bombay High Court does not appear to have examined the licence from this angle. The term identical to the one here, in a licence, has been examined by the Delhi High Court in Jain Exports Pvt. Ltd. v. Union of India . The licence under consideration before the said High Court, was the one issued during the Policy period I9S0-X1 available for import of items in Appx 5 and 7, other than those in App 26, and has the endorsement of para I77(3)(5)(6) and (7) of the said Policy Book and item imported was coconut oil industrial grade, which on the date of arrival, was a canalised item, though initially the same allegedly figured in OGL list, and interpreting the aforesaid clause in the licence, the High Court Iwld:
But even assuming that under 1980-81 Policy the petitioner could have imported industrial coconut oil as a raw material, the same could not have been imported in July/September, 1982, when the goods arrived because admittedly industrial variety of coconut oil was a canalised item both in 1981-82, 1982-83 policy and, therefore, there was a prohibition regarding the importation of goods (namely coconut oil) at the lime of their arrival, as specially provided by endorsement in terms of the issue of licence. This licence was valid for import of goods if they were not prohibited at the lime of their arrival. The Petitioner cannot rely for import of coconut oil on a licence which prohibits the particular item of goods. The effect of this endorsement is to make it as if there is no licence for the import of coconut oil in September, I9H2. It is not as if the petitioner could import coconut oil in September, I9S2 hut subject to certain conditions. In fact he had no licence to import coconut oil at all when the goods arrived. It would be a case of import without any licence.
12. Further, the Bombay High Court, has, in Re: Climax Chemicals (supra) held that the licence having been issued under the statutory provisions, the Public Notice issued, being not a statutory notification by the competent authority, could not affect the rights vested as per the licence. The Supreme Court, had, in Andlira Industrial Works v. Chief Controller of Imports and Exports , an occasion to examine Policy provisions vis-a-vis statutory provisions of Import and Exports (Control) Order, and the said Court has held that the policy statement is not a statutory document, and have, in effect upheld the right of the Government, to amend/modify the same by issuance of Public Notice.
13. Rc-cxamining the subject licence, they specifically permit items figuring in Appx 5 and 7, other than those in Appx 26 and further permit, by virtue of endorsement of Para 186, to import such of the items, as the policy specifics to be OGL. It is only pursuant to the policy statement, as incorporated in para 186, that the subject import was made permissible to the appellants. Thus, the export to that extent was dependent on policy provisions. The point docs not appear to have been submitted before the Bombay High Court in the aforesaid decision in Re: Climax Chemicals (supra) from this angle as well.
14. When the condition appearing on the face of the licence, as also the decision of the Supreme Court, in Re: Mis. Andhra Industrial Works (supra) have not been examined by the Bombay High Court in Re: Climax Chemicals (supra), the submissions that the said decision is applicable on all fours to the set of circumstances here, cannot be accepted.
15. In Jayant Vegoils and Chemicals (P) Ltd. v. Union of India also, the matter docs not appear to have been placed before the Hon’ble Court, froiirthc angle of the condition incorporated in the licence, and the same appears to be the case, before the Tribunal when it decided the appeal in Gujarat Machinery Manufacturers v. Collector of Customs .
16. Thus, with the decision of the Supreme Court, in Re: M/s. Andhra Industrial Works (supra) providing that the Policy provisions are not statutory provisions and amendment could be done by way of issuance of the Public Notice, it has to be held that by issuance of 1TC Public Notice No 21/82 dt. 19.4.1982 the change in the Policy had been effected.
17. Even assuming that the licence being a document issued under statutory provisions and may, in ordinary circumstances, be not governed or controlled by any administrative instructions given subsequent to the issue thereof, one cannot ignore the fact that the same is issued subject to certain conditions, and one of such conditions, as discussed in details hcrcinabovc, make the import subject to policy provisions as they exist on the date of arrival. When the “statutory” directions make it so dependent, the import of goods have to be deemed to have teen subjected to the policy provisions.
18. The issue, whether the Public Notice had retrospective effect or not may also not assume much importance, as the condition as appearing in the licence, specifically provides for taxing all regulations and prohibitions existing on the date of “arrival”, into consideration.
19. Undisputedly the salts of oxytetracycline were put under banned items list on the dale of arrival, and, in ordinary circumstances, the import has to be considered as unauthorised.
20. It is also significant to note, that generally when policy provisions are changed, a saving clause is inserted protecting the imports, where firm contract/order has come into existence, prior to such changes or prior to some date as may be specified. If the licences issued prior to such changes are meant to be not affected, then there could be no reason to introduce such a saving clause.
21. The issue thai then calls for consideration is whether in the instant case, 11 rm contract already existed prior to issuance of ITC Public Notice 21/82 dated 19.4.1982, which was reportedly made known to the public on 25.4.1982.
22. Whereas the department has strongly relied upon the evidence gathered from the Punjab and Sind Bank, as also the statements of some of the bank employees, indicating that the Letter of Credit could not have been opened prior to 4th or 5th May 1982, and also on the date of despatch of the said Letter of Credit, as also on the stiitcmcnt of Mr. J.R. Sharma, the Managing Director of M/s. J.R. Sharma and Co. (Pvt.) Ltd. and demi copy of the indent and have pleaded that both, the invoice and the Letter of Credit have been ante dated, the appellants have placed strong reliance on the documentary evidence, including the letter dated 17.4.1982 from the foreign suppliers confirming the contract, where the number of Letter of Credit has also been mentioned, and have pleaded that Letter of Credit was opened on the dale specified, and in the alternative pleaded that criteria for ascertaining the firm commitment is not the date of opening of the Letter of Credit but the date of placement of order, and for that, have relied upon the decision of the Tribunal in Gokuldas llarbhagwandas v. Collector of Customs .
23. Examining first the issue whether the Letter of Credit was opened on 8.4.1982 as pleaded by the appellants or somewhere around 4th or 5th May 1982, as alleged by the Department, it is evident from the record that the Letter of Credit No. 2118000 was despatched only on 5.5.1982. The appellants have produced a letter dated 8.4.1982 addressed to the Bank with a request to the Bank to make some amendment in the Letter of Credit and the bank seems to have carried out such amendment and reported to the foreign supplier vide their letter dated 12.4.1982 with the copy to the appellants Mis. Kasinka Trading Co. What is intriguing is, if the. Letter of Credit was not despatched up to 5.5.1982, what could be the ostensible reason to address a separate letter to the supplier as amendment could have been carried out in the L.C. with them only and what is still further intriguing is the fact that as per the statement of Mr. Sanlokh Singh recorded on 22.7.1982, the letter dated 12.4.1982 was actually despatched on 11.5.1982, and not along with the Letter of Credit though it was precisely in relation thereto. Further, as per normal banking procedure, the commission chargeable would be col-lecledl debited from the account of the party, if any, on the dale of opening of the Letter of Credit. In the instant case, such bank commission, is charged and credit entry in bank’s own account is made only on 5.5.1982. When the despatch of the Letter of Credit is admitted to be in month of May 1982, the correspondence from the foreign bank, etc., may not assume much significance. What however is a striking feature is that the bank’s day book entry dated 8.4.1982 has some corrections made and the balance amount is increased and corrected to the extent of the amount shown in the subject Letter of Credit. Synchronisation both, of the date and amount, cannot be overlooked as just a coincidence, and the cumulative effect of the entire set of evidence drifts us to an irresistable conclusion that the Letter of Credit could not have been opened on 8.4.1982 as is claimed by the appellants, ‘together with that, there is also a statement of the bank officer Mr. U.S. Bhatia, who also stales and even maintains in his reply to the show cause notice, that the Letter of Credit was opened only on 5.5.1982.
24. The evidence as discussed above, as also duly considered in the order in original clearly establishes that the Letter of Credit could not have been opened on 8.4.1982 as alleged but was opened only on 5.5.1982 and thai the correspondence between the appellant Mis. Kasinka and the Bank attempting to show the dales in the month of April 1982 is just a fabrication, to misguide. It may also be significant to note that the application from the appellants to the bank for opening the Letter of Credit docs not bear any endorsement of Inward Entry.
25. With a view 10 refute the allegation of the Lctlcr of Credit having been opened in the month of May, strong reliance is placed on the letter dated 17.4.1982 from the suppliers in the foreign country, confirming the contract entered into with their Indian Agents, and emphasis is laid on the point thai the said letter mentions the Letter of Credit number with further endorsement, of their having received the copy but not the original from the bank. Apart from the fact that the dale of issue of Indent No. D/4565/82 from M/s. J.R. Sharma, itself is challenged, the said indent docs not bear any Lctlcr of Credit number. The invoice dale is 6.4.1982 and obviously il could not bear the Letter of Credit number as admittedly the Letter of Credit was not opened on that day. Even going by the appellants’ case the Letter of Credit was opened only on 8.4.1982, Mis. J.R. Sharma and Co. Pvt. Ltd. have their office in New Delhi and order was placed at their said office by Ms. Obcroi of Mis. Jusual Singh Sons & Bros. The letter of credit was reportedly opened at Jullundar Branch of Punjab and Sind Bank. It remains unexplained as to how the number and copy of the Letter of Credit could be despatched to the foreign supplier who in acknowledgement of invoice dated 6.4.1982 from Mis. J.R. Sharma & Co., in their letter dated 17.4.1982 also acknowledge the receipt of copy of Letter of Credit. From the endorsement made on the said letter dated 17.4.1982, it appears that the said letter was received on 27.4.1982. This indicates the letter would take about 10 days lime to reach from one destination to another and it would he rather difficult to convince oneself to a situation that copy of the Letter of Credit opened at Jullundar on 8.4.1982 was obtained and despatched to M/s. J.R. Sharma and Co. at New Delhi, who in turn sent it to the supplier in Yugoslavia, which reached there before 17.4.1982 and found its mention in the letter dt. 17.4.1982. Viewing from that angle, the letter dated 17.4.1982 appears to be a solicited letter procured anytime in or after May 1982 and in any case, with the other evidence on record indicating contrary, il is not possible to accept the said letter as authentic piece of evidence, sufficient enough to dislodge the department’s case.
26. Plea however is raised that irrespective of whether the Letter of Credit was opened on 8.4.1982, the contract had already come to be entered into by 8.4.1982 and what was material was the date of contract and not the date of opening of Letter of Credit. Case law in relation thereto has also been cited, without entering into academic discussion as to when a firm contract could be said to have come into existence, and examining the point whether the subject contract was really entered into on 6.4.1982 as alleged, one cannot overtook the point that the Letter of Credit in relation thereto is not proved to have been opened on 8.4.1982. With this, there is a statement of Mr. J.R. Sharma, the Managing Director of M/s. J.R. Sharma and Co. who, on verification of demi copy of Indent, has staled that the same is dated 1.5.1982, though initially the same was dt. 23.4.1982. He has also stated that the said demi copy also had correction made in pencil, where, amongst others, dale 5.5.1982 has been mentioned. He has also slated that Mr. Oberoi visited them in May 1982. This statement is sought to be explained by the appellants on the ground that because of old age, Mr. Sharma was not attending the day to day business which was handled by his son. It is however not the oral version of Mr. J.R. Sharma that provides evidence on the point. Besides his alleged personal knowledge, he has referred to and verified from the documents, in the form of demi copy, available in the office. His statement, therefore, cannot be discarded as the one of a person not acquainted with the day to day work. Further, there is no retraction of the. same by him. I his evidence, thus indicates that the Indent was, in reality not drawn on 6.4.1982 and viewed in the light of other connected evidences, more particularly the most important supporting evidence of opening of the Letter of Credit, clear indication is available that Indent was also not issued on 6.4.1982 or on any day prior to issuance of l’l’C Public Notice dated 19.4.1982 hut was subsequently ante dated.
27. In the result, there exists no justifiable ground to differ from the conclusion drawn by the adjudicating authority, and the finding that the licences produced were not available, and that the import was unauthorised and the. goods were liable to confiscation vide Section 111(d) of the Customs Act, has to be sustained.
28. While maintaining the order of confiscation, we also do not sec any reason to interfere with the quantum of redemption fine. No evidence is made available as to hold the same as disproportionate to the margin of profit according to the appellants. We therefore confirm the same.
29. The issue that remains for consideration is whether, the personal penalties imposed on each one of the appellants are just and proper. A technical objection has been raised, that the order imposing penally docs not indicate as to wheiher the penalty imposed is vide Clause (a) or Clause (b) of Section 112. Though the adjudicating authority has not specified either of the clauses, the provisions of which have been invoked, and we hold the view that he ought to have been careful enough to have done so, from what has been discussed, it cannot be said that he was not clear in his mind about applicability of specific provision. In the body of the order, while deciding to impose personal penalty on the appellants M/s. Kasinka Trading Co. he has mentioned “M/s. Kusinka Trading Co. with connivance of others made an attempt to import banned item against ante dated letter of credit.” He thus clearly intended to invoke provisions of Clause (a) of Section 112. or appellants M/s. Jaggat Singh Sons & Bros., his finding is that they acted and abetted in the transaction by showing ante dated contract, and. for appellant Mr. Santokh Singh, the finding is that he and officer Mr. Bhatia did not perform their duties as per RBI guidelines and bank’s procedure but functioned at the instructions of their client M/s. Kasinka Traders for their undue benefit. Thus as per the finding, it was because of their active assistance that illegal import was attempted by ostensibly overcoming the existing policy provisions. Thus, the adjudicating authority has also invoked provisions of Clause (a) of the said Section. The allegation in the show cause notice are also specific, and the only lapse being non mention of specific clause of the section, has not in any way affected adversely to the appellants in their defence, so as to warrant selling aside the order.
30. In the circumstances, the only point requiring consideration is whether the penalties are justified and if yes, the quantum of penalty amounts require any reduction. It may be noted that the department has not come with any appeal for enhancement in penally amounts.
31. Appellants M/s. Kasinka Traders are the persons who attempted to import the same subject goods by placement of order, with getting both, the indent and Letter of Credit, ante dated. Their involvement is thus complete and unassailable. The penalty is therefore properly imposed on them, and considering the circumstances, we find no justifiable ground to interfere with even the quantum of penalty amount which is Rs. 1,00,0001- for an attempted import of goods worth Rs. 5,91,9071- with deliberate idea of flouting the policy provisions and fabricating false evidence in that regards. The same is therefore confirmed.
32. For appellants M/s. Jaggat Singh Sons and Brothers, the penalty is Rs. 3,000-/. From the evidence brought on record it appears that Mr. Oberoi of the said firm, acting for and on behalf of the firm, negotiated the entire deal. It was he who procured the indent. When the indent is held to have been ante dated, the action of Mr. Oberoi, could not be taken as one, bona fide carried. Further the firm has received brokerage, to the. extent of Rs. 1,00,0001- as is reflected in their letter dated 3.5.1982, which, considering the CIF value of the goods, appears rather abnormal. There could therefore be no hesitation to conclude that the firm was actively assisted with and abetted M/s. Kasinka Trading Co. in carrying out plan and thus rendered themselves liable to penalty. As the department has not preferred any appeal for enhancement penalty amount, we do not consider this aspect, however, justifiable ground exists for setting aside or even reducing penalty. The order of the adjudicating authority is therefore confirmed.
33. Appellant Mr. Santokh Singh, the Bank Manager is imposed with a penalty of Rs. 5,000/- with ante dating of the Letter of Credit issued by the branch where he was the Manager at the relevant time, duty established, it is not possible to believe that he was ignorant of the entire incident. Mr. Bhatia, the officer, clearly involves this appellant besides admitting that he prepared ante dated Letter of Credit. The statement of Mr. Bhatia has remained unrebutted. Further, corrections in the bank records could not have remained unnoticed by him. The things, as they have happened at the bank, indicate his participation and connivance, and as such he has been rightly held liable for imposition of penally. However, when M/s. Jaggat Singh Sons and Brothers, are imposed a personal penalty of Rs. 3,000/- and another officer in the bank is imposed a penally of only Rs. 1,000/- and also considering the other consequences that this appellant is likely to suffer, we take a liberal view and reduce the penalty to Rs. 2,000/- (Rupees Two thousands only).
33. Under the circumstances, while dismissing appeal No. 515/89 and 513/89, appeal No. 514/89 is partly allowed and personal penalty is reduced to Rs. 2,000/- (Rupees Two thousands only).