S.K. Bhatnagar, Vice-President

1. This is an appeal filed against the order of Additional Collector of Customs and Central Excise No. 199/88, dated 28-8-1988.

2. The learned representative of the appellant drew attention to their appeal memorandum and the written submissions filed by them on 5-7-1991 and requested that the case may be decided on the basis of the written submissions.

3. The learned DR also stated that they had filed written submissions on 13-6-1991 and the matter may be decided on the basis thereof.

4. It is observed that as per the impugned order the appellants had received two post parcels containing cut and polished Emerald and rubys from Honkong as reimport consignments of the earlier export made on consignment basis and said to be covered by the Export Certificate and P.P. form mentioned in the order and the appellants had claimed them under Section 20 of the Customs Act, 1962. The department has however felt that the goods did not tally in quantity and number of pieces as well as value and were not identifiable with reference to the goods exported earlier under the Export certificates; as such they were not eligible for the benefit of Section 20 CA 62. Further they had been imported in contravention of the Import Trade Control Order 17/55, dated 17-12-1955. Hence, according to the Department, the goods were liable to confiscation and appellants were liable to penalty. The learned Additional Collector has accordingly confiscated them with reference to Sections 111(d) and (m) but allowed an option to the appellants to re-export these goods in lieu of confiscation, on payment of a redemption fine. He has however dropped the proceedings under Section 112.5. The appellants have submitted, in the main, that they had exported cut and polished Emeralds and Rubys of Indian origin to Hongkong.

5. The parcels in question were examined in the presence of an appraiser. On examination the re-imported goods were found to be not tallying with the goods originally exported by them. Hence they suggested re-export of the goods to the persons from whom they have been received. They were however served with the show cause notice and the learned Asstt. Collector had proposed penalty also. It was their contention that the show cause notice was not warranted in this case. The goods in question have not landed in India at their behest nor they had asked for these goods to be sent to them. The lots contained in the reimported parcels are not those which was exported by them against PP forms and they were least concerned with the reimportation of the said goods "as these did not belong to us". Neither they claim these goods to be their products nor they have any involvement in the reimportation of the goods.

6. It is inconcernable for any ports to accept the goods the value of which is short by nearly 90% of the original export value.

7. No sooner it had come to their notice they informed the party by phonogram about the discrepancy and had been pursuing the matter with them to check up and let them have their goods back or the money valued thereof.

8. It was therefore their contention that they had neither committed any offence under the Customs Act nor under the Import Trade Control Act nor they were not liable to any penal action under Section 112. They also do not accept the duty liability as they have not imported dutiable goods. They had no concern with or interest in the goods. The party had admitted that different goods had been sent through misunderstanding on their part. As such the same did not warrant any action. On the contrary the goods deserved to be reimported to the consignors so that they do not suffer any loss. They deny having anything to do with the goods. The show cause notice does not disclose any evidence to show that the party abroad had at their instance or with their knowledge or connivance sent them the goods different from those originally exported and it is important to consider as to how far a consignee