IMPORTANT POINT
Where goods in the restricted test under Import Export Policy were imported under licence subject to condition but there was breach of condition then goods were liable to be confiscated u/s 111(d) of Customs Act.

JUDGMENT

Arun Kumar, J.-These appeals are directed against the order of the Customs Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal ) dated 20th November, 2000. By the impugned order the Tribunal allowed re-export of the three consignments of tussah silk and one consignment of silk fabric having a total value of Rs. 45,85,291/-. The Tribunal further set aside the penalties imposed on individuals by the Commissioner of Customs, Kolkatta. The individuals had filed appeals before the Tribunal against the order of the Commissioner of Customs and the Tribunal allowed the same. Hence these appeals by the Department.

2. Briefly the facts are that M/s. Olympia Exports of New Delhi through its proprietor Shri Mahesh Chowhan imported the goods in question from Hong Kong purportedly against an advance licence. The goods in question fall within list of restricted items import whereof is permitted subject to certain conditions. The importer had obtained an advance licence in July, 1997. Against the said licence the importer had imported and cleared five consignments of raw silk through the Kolkatta port free of duty subject to the condition that the imported goods after conversion had to be re-exported. Intelligence was gathered by the officers of the Directorate of Revenue Intelligence, Kolkatta to the effect that M/s. Olympia Exports based in New Delhi had imported and cleared five consignments of raw silk against a fraudulently obtained advance licence and had sold the said imported silk in the open market without discharging the export obligation. Thus they had violated the provisions of the revenue exemption notification and the export-import policy. Further intelligence was gathered to the effect that the same importer had again imported two consignments of silk fabric and tussah silk through Kolkatta port and the said consignments were awaiting clearance. It appears that while the investigation by the Directorate of Revenue Intelligence, Kolkatta was going on, the importer got a wind of it and therefore it never turned up to get the goods under the aforesaid two consignments released. According to the revenue the advance licence obtained by the importer was forged. Summons under the provisions of the Customs Act, 1962 were repeatedly issued to M/s. Olympia Exports and Shri Mahesh Chowhan, proprietor of M/s. Olympia Exports, New Delhi to appear before the Directorate of Revenue Intelligence. The summons could not be served on either M/s. Olympia Exports or Shri Mahesh Chowhan and they never appeared in response to the summons. Summons were also issued to various other parties involved in the previous transaction of import of five consignments which had been cleared through customs. They appeared in response to the summons and their statements were recorded. Ultimately a demand-cum-show cause notice under Section 124 of the Customs Act, 1962 read with Section 28 of the said Act was issued on 14th May, 1999 to M/s. Olympia Exports, New Delhi, Shri Mahesh Chowhan and others. So far as the consignment, subject matter of the present appeals is concerned, the show cause notice called upon the noticees to show cause why goods subject matter of the two consignments, should not be confiscated under Section 111(d) of the Customs Act, 1962 and why penalties should not be imposed. The importer did not respond to the show cause notice. Instead M/s. Grand Prime Limited respondent No. 1 addressed a communication dated 27th May, 1999 to the Commissioner of Customs stating that they had exported the goods subject matter of the two consignments. In the letter respondent No. 1 stated that it had failed to locate that exporter. It was further stated that efforts were made to find an alternative purchaser for the goods which it had failed to arrange. Request was made to the Commissioner to grant permission to re-ship/re-export the goods comprising the said consignments. An advocate named Shri Om Prakash Chowdhary