ORDER
Krishna Kumar
1. These are 3 appeals filed by the appellants against the common Order dated 22.4.92 passed by the Collector of Customs, Bombay. Since the issue involved in all the 3 appeals are common, the same are being disposed of by this common order. By the impugned order, the Collector of Customs has confiscated the goods, levied duty, imposed penalty, fine and interest under the provisions of Customs Act 1962. In appeal No. C/3543/92, the supplementary order dated 14th August 92 is also under challenge.
2. Briefly stated the facts of the case are that the appellants imported 5 consignments of ivory board sizes 28″ x 22″ supplied by M/s. Hattori Paper and Board, Japan in 5 invoices of dated 22.9.91. They were also against indent No. 6-10/91. Letter of credit was opened on 24.9.91 for shipment on or before 30.9.91. Though the Bills of Lading were dated 30.9.91, the ship left Japan Port only on 8.10.91. It was alleged that the appellants were aware because of the letter dated 2.10.91 received from Mr. Haova Kavasum, General Manager (Finance) of the foreign supplier, M/s. Hattori Paper & Board. The Collector also held that they are related companies, the commission of 4% in the beginning and 5% at a subsequent stage was debited to the amount of M/s. Pankaj Trading Company towards the service charges. It is also alleged that by a subsequent order, the weights of the consignments were not accepted and by subsequent adjudication, the duty was demanded on the net weight.
3. The contention of the appellants is that they were not aware of the manipulation of the Bills of Lading date even though the appellants have given a statement that it was manipulate; that the letter of credit was opened on 24.9.91 and hence, it was the supplier who had the motive to manipulate and not the appellants; when all the Bills of Entry were filed on 11.11.91, the appellants got in touch with the suppliers viz. M/s. Hattori Paper & Board; that this correspondence is by a series of texlexes dated 28.11.91, 3.12.91, 10.12.91 and 12.12.91; that the Department is relying only on the letter dated 2.10.91 and not on all these telexes; that the letter dated 2.10.91 was sent by ordinary post received on 12.10.91; that if this is being considered, they cannot be held to be responsible for the misdeclaration; that the adjudicating authority has not at all considered the submissions of the appellants whereas the steamer agent M/s. Forbes & Forbes Campbell Co. Ltd. have been left untouched; that a perusal of the debit note shown that they are all unsigned; that they have all been addressed to M/s. Pankaj Trading Co. and not to the 3 importers; it is dated 31.3.91 for the periods 1986 to 1988; that the appellants have submitted that they have not incurred any service charges because Pankaj Paper Co. P. Ltd. is their own concern; that no show cause notice was issued to M/s. Pankaj Paper Co.P. Ltd. nor their submissions have been recorded nor their books of accounts have been seized; that as regards the weight, the appellants contend that the excess is because of wrapping paper that is permitted according to the commercial practice because the sides have to be trimmed when once the packages are opened up. In support of the contention, the appellants have relied on the decision reported in 1989 (42) ELT 556 (Del) in the case of Ahmed Oomerbhoy (Exports) P. Ltd. v. Union of India; that in page 38 of the impugned order, a reference has been made to a letter dated 4.6.92 and consequently, the impugned order could not have been passed on 22.4.92.
4. The contention of the Revenue is that Licence No.P/B/3258794 dated 28.6.90 of M/s. Nava Bharat Enterprises Ltd., Calcutta was valid upto 31.12.91 whereas Licences No.P/L/3316612 dated 14.3.90 of M/s. Saraf Trading Corporation and Licence No.P/L/3316613 dated 14.3.90 of M/s. Saraf Trading Corporation, Cochin were valid for import of goods upto 30.9.91 only; all these 3 Licences were transferred in favour of the appellants as they have purchased the same from the Licences. As per the documents submitted to the Revenue, the goods were shown to have been shipped on 30.9.1991 i.e. the last date of validity of the two Licences mentioned above and the clearance of the goods of the value of Rs. 7,43,725/- out of the total value of Rs. 7,95,838/- has been claimed; the appellants have also in their declarations filed under Rule 10 of the Customs (Valuation) Rules 1988 declared that there is no agent and brokerage and commission is nil; that in the absence of valid Import Licence, goods valued at Rs. 7,83,537/- (cif) (Rs. 7,43, 745/-(cif) as per the declared value) and Rs. 39,792/- being indentors’ commission @ 5% of the cif value of the goods) appeared to have been imported in contravention of the Government of India Imports (control) Order No. 17/55 dated 7.12.1955 read with Section 3 of the Imports and Exports (Control) Act 1947. This appeared to constitute an offence and the goods, therefore, appeared to be liable for confiscation under Section 111(d) of the Customs Act 1962 read with Section 3 of the Import and Export (Control) Act 1947. The said commission amount is liable to be included in the assessable value and chargeable to customs duty in terms of Section 14(1)(a) of the Customs Act 1962/Rules 9(1)(a)(i) of the Customs Valuation (Determination of Price of Imported Goods) Rules 1988; that so far as the anti-dates of the Bill of Lading is concerned, it has clearly come on record and even it has not been disputed by the appellants that the goods in question were loaded on the particular Vessel only on 8.10.91 and not on 30.9.91.
5. After perusal of the records, hearing the rival submissions and perusing the case laws cited by both the sides, it is clearly established that the goods in question for the value of Rs. 7,43,745/- had been imported against the import Licences which have already expired on 30.9.91. We, therefore, do not find any merits in the appeals and the same are dismissed.
Gowri Shankar, Member (Technical)
1. There are two issues involved in this appeal. One relates to ante dated bill of lading and the other, the addition of the indenting commission the assessable value of the goods.
2. The antedated has not been denied, but it is contended that it was done not at the instance of the appellant or any of its employees but at by the supplier of the goods. Once it is not denied that the bill of lading were antedated and the goods were in fact received for shipment by the carrier after the date of expiry of the licence, it follows that they were not covered by the licences in question and hence their import is the order of confiscation the goods is therefore to be confirmed.
3. It is not even possible in fact to accept that the appellants were unaware of the ante dating of the bill of lading. It is the appellant who suffers to the bills of lading which were antedating and not the supplier. The letter dated 2nd October 1991 of the supplier to D.P. Gahar, proprietor of the importing company, director of the indenting company clearly mentions that the goods were now going to be supplied and shipped leaving on 8th October. That the Commissioner concludes that it is not legitimate inference that the appellant was aware that the goods had not been shipped by 30th September, 1991 by which time licence had expired. Penalty was therefore imposable on the importer on this account.
4. The other issue inclusion value of the agency charge paid to Pankaj Trading Co. Pvt. Ltd. the indenting agency through whom the orders were placed. The contention is that service charges have not been incurred because Pankaj Paper Co. Pvt. Ltd. is the same concern as the importer. This contention is clearly unacceptable. The importing firms, Pankaj Trading Co. Sales Corporation and Paper Sales Corporation were proprietary concern owned by D.P. Gahar. Pankaj Paper Co. Pvt. Ltd. was, as the term indicates, a private limited company. The company has a clear corporate identity clearly different from the importing companies. In fact if it was not an agent, the payment of commission to it would not arise. The fact that no notice has been issued to the indenting company has no bearing on the includability in the value of the goods of the commission. The omission to include also renders the appellant liable to penalty.
5. The appeals are dismissed.