ORDER
S.K. Bhatnagar, Member (T)
1. This is an appeal against the order of the Collector of Customs and Central Excise, Jaipur.
2. The learned Counsel stated that briefly the facts are that the appellants had exported certain cut and polished stones on approval basis. The importer returned certain lots and sent information about the items being returned. The appellants filed the Bill of Entry claiming re-import accordingly under Section 20 of Customs Act, 1962.
3. It was further alleged by the department that on examination the identity of the re-imported goods was not established with reference to the goods claimed to have been exported in the relevant export certificate.
4. It was their contention that the Bill of Entry was filed on the basis of the information supplied by the exporter but when it was found that the goods in some lots were not identifiable he had made a request that the same may be returned back to the exporter. The department accepted the request of the appellants to the extent that the Collector allowed the re-export of the goods in question. However, he also imposed a fine of Rs. 10,000 on the appellants and they are aggrieved with reference to this aspect of imposition of fine.
5. In this connection, he would like to mention that the learned Collector his himself observed that “I find there is no evidence to suggest that the importers intentionally misdeclared the contents of the consignments covered by Lot Nos. 843, 844, 845 and 847, since they made the declaration on the basis of advice received from their consignment agent at Singapore. Consequently, the importers have not deliberately contravened the provisions of the Imports and Exports (Control) Act, 1947 read with Section 11 of the Customs Act, 1962 as the consignment agent, with reference to the export made earlier. I, therefore, see no valid ground for penalising the importers as alleged in the notice.”
8. I notice the importers have requested for permission to re-export the consignment. They have produced a photocopy of a letter sent by their consignment agent booking return of the consignment for verification and also a letter dt. 6.2.1988 assuring full payment, in case the lot had been erroneously returned. It is obvious from the records that the consignment agent had been careless and negligent, while returning the consignment. In this view of the matter, I hold that this is a fit case where option to re-export could be extended on payment of token fine in lieu of confiscation.
6. From this it will be observed that the Collector himself has been good enough to accept their bona fides and has further accepted that it is the consignment agent who has been careless and negligent. It was their contention that in view of these findings the Collector should not have confiscated the goods and should not have imposed a fine in lieu of confiscation. The goods have since already been re-exported. In the circumstances he prays that the fine imposed may be set aside.
7. The learned S.D.R. drew attention to the facts of the case and the discussions as recorded in the order-in-original. He emphasised that admittedly the goods which have been re-exported did not tally with the goods originally exported in respect of the particulars indicated in the export certificate and mentioned in the order not only in respect of the number of pieces but also the weight and consequently the benefit of Section 20 of the Customs Act could not be extended. As a result the provisions of the Import and Export (Control) Act were also attracted. Since the declaration in the Bill of Entry was not found to be true and correct, therefore, the violation of Customs Act was also involved. Hence the goods were liable to confiscation.
8. However, looking to the circumstances of the case the learned Collector has been good enough to allow re-export on payment of a nominal fine. Hence he opposed the prayer and requests that the order of the Collector may be upheld.
9. I have considered the submissions of both the sides. I find that the learned Collector has rightly held that the identity of the goods in question has not been established with reference to the export certificate and the Bill of Entry did not contain a true and correct declaration. The appellants have also admitted these facts. I further notice that the learned Collector has himself observed inter alia that there is no evidence to suggest that the importers intentionally misdeclared the contents. This is important inasmuch as an incorrect declaration can be either a deliberate and intentional act or an innocent and unintentional act. In my opinion the legislative intent was to award punishment in the case of the former and not the latter.
10. As the Collector himself was satisfied about the bona fides of the appellants and considered it to be a case of carelessness or negligence on the part of the exporter (and not the appellant), it would go to show that the violation of the Import and Export (Control) Act and the Customs Act was merely technical and unintentional. In these circumstances there was hardly any cause for imposition of a fine. The Collector having rightly allowed the re-export of the goods in the above circumstances could have very well allowed the matter to rest at that and condoned the technical lapse after administering a caution at the most, if so deemed necessary. In view of the above position we set aside the fine imposed on the appellants. The order of the Collector is modified to this extent only. In the result the appeal is accepted.
