Harish Chander, Member (J)

1. M/s Mody Brothers, 403, Raheja Chambers, Nariman Point, Bombay - 400021, have filed an appeal being aggrieved from the order passed by the Collector of Customs, Bombay.

2. A notice of hearing dated 16th August, 1990 was sent per registered A.D. post and the appellants vide their telegram received in the Registry on 10th September, 1990 have intimated that the matter may be decided on the grounds mentioned in the appeal memo.

3. Briefly, the facts of the case are that M/s. S.B. Metal Co., 6/42, Dariya Mahal No.3, 80, Napean Sea Road, Bombay - 400 006 had imported 69 drums of brass dross vide bill of entry No.1518/51. The importers had declared the imported goods as brass dross weighing 17.024 metric tonnes nett from USA and claimed its clearance under OGL Appendix 10, Part III, Sr. No. 2 of AM 1984 Policy and the suppliers were M/s. Amalgamated Iron & Metal Inc., New York and the unit price declared in the invoice No.119/15-8-83 was US cents 58 per Lb CIF Bombay. Pursuant to certain intelligence information received, it was found that there was misdeclaration of the goods and the goods imported were actually found to be brass scrap against the declared item as brass dross. Brass scrap was assessed under Heading 74.01/02 and the rate of duty was 85% + 35% + Rs. 3300.00 per metric tonne, whereas the brass dross was assessable under Heading 26.02/04 and the rate of duty was 40% + 25%. Statement of Shri Nilesh Agarwal, partner of M/s. S.B. Metal Co. was recorded and also the present appellants M/s. Mody Brothers, the indenting agents were also desire to give evidence. M/s. Mody Brothers vide their letter dated 22nd December, 1983 had intimated that they had already given evidence in a similar case of import by M/s. Gokul Chand & Sons and the same may be taken on record in this case and Mr. Anil Mody in his statement dated 20th December, 1983 had stated as under:

(a) that the suppliers had assured them that the goods supplied would be brass dross only;

(b) that the prevailing price of brass dross was US cents 56 per Lb CIF Bombay and brass scrap was available at 48 cents per Lb CIF Bombay;

(c) that he had inspected the goods in docks and that thereafter he had lodged complaint with the suppliers and that he had advised the importers to get the goods surveyed through SGS, Bombay;

(d) that the suppliers had supplied wrong goods.

The Collector had ordered the assessment of the goods as brass scrap and the net weight was 15023 kgs. out of which 4471 kgs. was brass dross. The appellants, M/s. Mody Brothers had waived the issue of the show cause notice and the Collector had confiscated the goods, but gave an option to the importers to redeem the goods on payment of fine of Rs. 60,000.00 (Rs. sixty thousand only) and had also imposed a penalty of Rs. 50,000.00 on the importers and Rs. 5000.00 on the indenting agents, and being aggrieved from the order passed by the Collector of Customs, the indenting agent has come in appeal before the Tribunal.

4. Shri Prabhat Kumar, the learned JDR who has appeared on behalf of the respondent, pleaded that the indenting agent M/s. Mody Brothers, the present appellants, were a party to the misdeclaration of the goods and the offence is punishable. He relies on the order passed by the Collector of Customs and has pleaded for the rejection of the appeal.

5. We have heard Shri Prabhat Kumar, the learned JDR and have gone through the records. The facts are not disputed. M/s. Mody Brothers in their letter dated 22nd December, 1983 had intimated that the evidence as given by them in the case of M/s. Gokul Chand & Sons, Ujjain may be adopted. Para No. 5 from the order passed by the Collector of Customs, Bombay is reproduced below:

"5. M/s Mody Brothers, the indenting agents in their letter dt. 22-12-1983 stated that they had already given the evidence in a similar case of import by M/s. Gokul Chand & Sons, Ujjain and that the same may be taken on record in this case. In their