ORDER
S.K. Bhatnagar, Member (T)
1. This is a stay application filed with reference to the order of the Additional Collector dated 9.2.90.
2. The learned Counsel stated that the appellants received a Show Cause Notice alleging that their unit was manifested as Importer/Consignee in respect of container which landed at ICD on 25.7.87.
3. It was also alleged that no Bill of Entry was filed for clearing the goods.
4. It was their contention that they had not placed any indent with M/s. Novel and Novice Textiles, Amsterdom who were the suppliers in this case; and that the consignment had no connection with them. In this respect he would draw attention to the correspondence marked as Annexure ‘C’.
5. The appellants had also filed an affidavit denying the import of consignment by their firm.
6. The Additional Collector has further imposed a personal penalty of Rs. 50,000/- on them (besides confiscating the consignment).
7. He stated that they have got a good prima facie case, and are financially hard up and not in a position to deposit the penalty. Hence the prayer.
8. The learned S.D.R. drew attention to the facts stated in the order-in-original. He emphasised that the consignment had been received in the name of the appellants who were manifested as Importer/Consignee.
9. In spite of it the appellants had not filed any Bill of Entry in terms of Section 46 of Customs Act, 1962.
10. A notice under Section 48 had been issued to them but they had not come forward to file the relevant documents.
11. On examination the container was found to contain old and used assorted woollen and synthetic pants in two pieces.
12. The said goods did not conform to the declaration in the IGM and the Bill of Lading and were not completely mutilated synthetic/woollen rags. Hence for the reasons recorded in the order the goods were confiscated and penalty was imposed on the appellants.
13. He, therefore, opposes the prayer.
14. We have considered the submissions of both the sides. Admittedly the appellants had not filed any Bill of Entry or any other documents for clearance of the goods and had stated that they had no connection with the goods. In the circumstances we are granting waiver of pre-deposit of penalty.
15. Further in view of the above position we take up the main appeal itself with the consent of both the sides.
16. We notice that the department has made out this case merely on the basis of the mainfest and the Additional Collector has considered them as the importers on the ground that goods have been consigned to them from a foreign buyer.
17. However, the learned Counsel has drawn our attention to the correspondence with the Punjab National Bank, Amritsar and to their letter dated 15.12.89 addressed to the Additional Collector of Customs. In the letter dated 15.12.89 it has been mentioned that,
“We have not booked any Indent for supply of one container of old synthetic rags completely pre-mutilated with M/s. Novel and Novice Textiles, Amsterdom and for which documents were presented on 9-6-87 through Punjab National Bank, Overseas Branch, Hall Bazar, Amritsar. The documents presented through the Bank were returned as our firm has not placed any Indent with the said supplier. No payment has been made by us for the said consignment and we are not concerned with the Import of said consignment.”
In view of this position it was open to the department to make further enquiries with the Punjab National Bank to ascertain the correctness or otherwise of the above assertion but the department has not done so.
18. Further Section 46 has to be read with Section 48 and when so read it would be apparent that the word shall used in Section 46(1) has to be read as ‘may. The relevant portion of Section 46(1) is reproduced below :-
“(1) The importer of any goods other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed from.”
Whereas Section 48 describes :-
Procedure in case of goods not cleared, warehoused, or transhipped (within forty-five days) after unloading – If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped (within forty-five days) from the date of the unloading thereof at the customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof.”
19. In the circumstances, in the event that the goods were found to have been consigned and manifested in the name of the appellant and the appellant had not come forward to clear the same it was open for the department to take recourse of Section 48.
20. In so far as the present case is concerned, since the goods had been manifested in the name of the appellants and consigned to them, therefore, there was some probability that the goods were meant to be delivered to the appellants. However, at the same time the appellant had not retired the documents and the department had not cared to verify the correctness of their statement that no payment had been made. Therefore, the matter was in any eventuality not free from doubt and the benefit of doubt goes to the appellants.
21. Since the appellants have not claimed the goods and have not contested their confiscation, therefore, we need not enter into the merits of the case in so far as it relates to the question of confiscation.
22. However, so far as the question of penalty is concerned in view of the above discussion we consider that the same was not called for in the circumstances of the case. We, therefore, set aside the same. In the result the appeal succeeds and is allowed as such.