ORDER
S.S. Kang, Member (J)
1. Appellants filed this appeal against the adjudication order passed by the Commissioner of Customs.
2. Brief facts of the case are that the appellants made an import of gems and in the Bill of Entry, the goods were declared as ‘rough saphire’. When the goods were examined, it was found that along with rough saphire, there were 1312 gms. of cut pre-shape saphire and 15 gms. of polish saphire. The adjudicating authority confiscated the pre-shape saphire and cut and polish saphire and gave option to the appellants to redeem the same on payment of redemption fine of Rs. one lakh and imposed a penalty of Rs. 25,000.00.
3. Heard both sides.
4. The contention of the appellants is that the goods, in question, were wrongly sent to the appellants and on coming to know about the wrong shipment, the appellants made a reference to re-export the goods to the suppliers. The appellants received a FAX message dated 24-6-93 from their suppliers for making a request to return the goods as those were wrongly sent to the appellants. The contention of the appellants is that the goods, in question, were in fact ordered by M/s. S.S. Agencies, Bangkok and the suppliers sent the goods wrongly to the appellants. He relies upon the order placed by M/s. S.S. Agencies and the communication sent by the suppliers. The contention of the appellants is also that when the Commissioner of Customs ordered reexport of the goods, no duty can be demanded. Therefore, the goods cannot be confiscated and no penalty can be imposed.
5. The contention of the Revenue is that the appellants mis-declared the goods. The appellant is a regular importer of the goods. Therefore, he is aware of the customs rules and regulations.
6. In this case, the contention of the appellants is that the goods were wrongly sent to the appellants as they never made any order in respect of these goods. The appellants are relying upon the FAX message received from their supplier dated 24-6-93. The appellants had not produced a copy of the FAX message. The contention of the appellants is that original ‘FAX’ message was handed over to the customs authorities and no copy of the same was retained. The Commissioner of Customs, in the impugned order, specifically had taken into consideration this aspect of the matter and held that at the time of personal hearing, the ld. Counsel, appearing on behalf of the appellants, made a submission that the original ‘FAX’ message was submitted to the customs authorities vide letter dated 26-6-93, but, by mistake the date on the letter was mentioned as 24-6-93. After considering the facts and circumstances of the case, the Commissioner of Customs held that the documents filed by the importer, including ‘FAX’ message, were not submitted to the adjudicating authority and had been prepared subsequent to the examination of the goods in haphazard manner and rejected the claim of the appellants. In the present appeal also, the appellants had not produced any evidence in respect of the ‘FAX’ message received from their suppliers.
7. The appellants relied upon the decision of the Hon’ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. (J 159) to say that no penalty can be imposed for technical breach. In the present case, it is not merely a technical breach as the appellants imported the goods on higher value and tried to clear the goods by misdeclar-ing the same and thereafter, making the case that the goods were wrongly sent by their suppliers. Appellants also relied upon the Hon’ble Supreme Court decision in the case of Siemens Limited v. CC reported in 1999 (113) E.L.T. 776 (S.C.) to submit that when the goods were ordered to be re-exported, no redemption fine can be imposed. In the case of Siemens Limited (supra), the Commissioner of Customs confiscated the goods imported by Siemens Limited and gave option to redeem the goods on payment of redemption fine. The Commissioner of Customs also made an order for re-export of the goods and specifically ordered that in case of re-export, no duty will be chargeable. Taking into consideration the facts and circumstances of the case, the Hon’ble Supreme Court in the case of Siemens Limited (supra), held that when the goods were re-exported, as per the direction of the Commissioner (Customs), redemption fine and penalty is not sustainable. In the present case there is no such direction by the Commissioner. The Tribunal in the case of Escorts Herion Ltd. v. CC reported in 1999 (107) E.L.T. 599 held that confiscation and imposition of penalty and re-export of the goods are two different aspects and the adjudicating authority after ordering confiscation of imported goods permits their re-export. Each of these two actions are permitted by law.
8. In view of above discussion, I find no infirmity in the impugned
order. The appeal is rejected.