ORDER
H.R. Syiem, Member (T)
1. The item of dispute in this appeal is a memory card brought by a passenger and which the appellant calls a part of photo-composing machine used in printing industry. This part had been taken by the passenger, Ravindra Kumar Gupta, when he left India in September, 1980. He also obtained an export certificate at the time of his departure. When he returned, the passenger produced the certificate with the part to the customs and the part was cleared free of duty, on the strength of the export certificate he produced. However, when re-examined, the officers found that the part brought back by the passenger was not the part taken out by him under the export certificate. The Assistant Collector, thereupon, confiscated the part under Section 111 of the Customs Act, 1962, imposed a fine of Rs. 5000/- and a penalty of Rs. 2000/- under Section 112 of the same Act. Duty was also recovered on the part.
2. The learned counsel for the appellant said that they had been penalised for a very small technical breach. The part brought back by the passenger involved little material expense and was practically the same as the one taken out of India. The customs themselves had no objection in the first instance because they saw that there was no substantial repair and the condition of the two was almost the same; the bona fides of the passenger was established beyond any doubt. There had been no concealment or misdeclaration of any kind but only an inadvertent irregularity. There was no intention by the passenger to evade the law.
3. The learned counsel for the department, Mr. Saha, however, pointed out that the imported part was not the same part that was taken out. The passenger brought a new part and this was against the law. Therefore, the action taken followed in due course. And he is quite right.
4. The memory card or memory circuit board that the passenger took out with him was replaced by the foreign company by another new one. It was this new circuit board that the passenger brought with him to India. Therefore, the export certificate was not valid to cover the new circuit. In spite of this knowledge…in fact, no one could have known better than the passenger himself at the time that the circuit he presented before the customs was not the one he took out under the export certificate he presented it as the very same one he had taken out with him; and he succeeded in duping the customs temporarily into releasing the part as the part he took with him. That he was found out in time does not attenuate or lessen the enormity of his bad faith. He tried to pass off the new board as the old one and for a while succeeded in this crooked design even though he was later caught and brought to justice. No one will be impressed by the plea of the advocate that it was a small technical irregularity and that the bona fides of the appellant was established beyond doubt. In fact, the mala fides of the appellant was established beyond doubt, because he with premeditation and fraudulent purpose concealed the facts by presenting the new board as the old board, and by attempting to clear it free of duty under the export certificate which he knew was not valid for the new board he had brought with him.
5. Much grievance was made that a confession was taken from the appellant on a promise that the case would be treated as a bona fide mistake and that the part would be released with a warning; and that the appellant never realised that the officers were laying a trap for him. I do not believe a word of this invention. The man was clearly out to fool the customs and he nearly succeeded. There could have been no trap when he was allowed out with the new board cleared on the basis of his false representation. When he was brought back, there would have been no need for any trap or for any promises of leniency. The forethought that preceded the action is clear for all to see; no words are too strong to condemn the deception.
6. In the revision application the appellant tries again; but this time he says that the memory circuit card is the same as mentioned in the export certificate, although in the appeal to the Appellate Collector, he clearly admitted that the memory circuit card imported was not the same as the one he exported. But this will not wash to accept this new story will lead to accepting anything.
7. The learned counsel argued that the card should have been assessed as part of the printing machinery. But the learned JDR, Mr. Saha, was correct when he opposed this on the ground that the memory card came not as a part of a machinery but only as a memory card. It may be used in the machinery, but when it arrived in India, it was nothing but a memory circuit card, and its assessment as a machinery part would not be correct. The learned JDR is correct, and the card has received an appropriate classification
8. The appeal is rejected.