S.L. Peeran, Member (J)

1. The appellants have filed this appeal under Section 129-A(1) of the Customs Act, 1962 against the order-in-original No. 27/87 dated 25.5.87 passed by the Addl. Collector of Customs, New Delhi.

2. The facts of the case are that the appellants wrote to M/s. Likai Nercurdise Ltd. Taipai that they wanted to import 50 tonnes of Viscose Staple Fibre and sought for their offer. The exporters vide their letter dated 30.4.85 offered the appellants the said quantity of fibre at USSI 45 kg and informed them that they were awaiting their orders. The appellants vide their letter dated 20.5.85 requested the exporters to ship 4 containers at US $ 1.80 Kg on CAD basis and that they will pay against their documents. The exporters, as a special case, vide their letter dated 15.6.85 agreed to send the goods and sent their indent for 4 containers and also their invoice/contract No. SM-48 dated 15.6.85. The contract was registered on 25.6.85 to the Ministry of Commerce. The contract was for the first quality Viscose Staple fibre off white semi-dull 1.5 Denier 51 mm at 1.12 US $ per Kg. The exporters also sent their invoice dated 1.8.85 for 56,000 Kgs., 308 bales of the said fibres. However, on 14.10.85 after the goods had been exported by the exporters, they informed the appellants vide their letter dated 14.10.85 that after the shipment of the goods, they had found that by mistake some bales of polyester fibre weighing about 47/48 tonnes had been shipped as some were similar in appearance and that they had asked their Hongkong office to draw documents for viscose only. They asked the appellants either to return the goods or remit the difference of amount. The appellants had before receipt of the above letter, already retired the documents from the Bank. They informed the Assistant Collector vide their letter dated 21.10.85 as to what had happened and that they had asked the exporters to withdraw the entire lot and therefore, were not presenting the documents for retrieving the goods.

3. However, on 2.5.86, a show cause notice was issued to the appellants in which it was alleged that the containers Nos. SCKU 6068297 and 6005302 loaded with 154 bales of Viscose staple fibre weighing 28,000 kgs. were grounded at the ICD Pragati Maidan on 1.10.85. No bill of entry was however, filed by the Importers for clearance of the said goods. On 22.12.85, the containers were opened and the contents of 11 bales were found of Viscose Staple fibre and the remaining 66 bales were concealed behind by stacking the 11 bales of Viscose Staple fibre in front of the container. Representative samples were drawn and sent to the Chief Examiner for test and the chemical test revealed that 132 bales out of 154 bales did not correspond with the goods mentioned in IGM and their description had thus been misdeclared and the appellants tried to evade customs duty of Rs. 17,08,000/- and the goods valued at Rs. 5,60,000/- were liable for confiscation. The statement of Shri Yashpal Prop, of the appellants had been recorded who had stated before the Investigation Agency that the goods were not according to the order booked, he refused to accept the goods and surrendered the goods as abandoned to the Customs and stated that the case may be adjudicated without issue of a show cause notice.

4. After the issue of the show cause notice, the appellants filed a reply vide their letter dated 7.6.86 that Bill of Entry had not been filed by them, as in response from the information from the bank, the appellants had retired the documents without delay. Soon after they received the letter dated 14.10.85 from the exporters informing them that by mistake bales weighing about 47/48 tonnes of polyester fibre had been shipped by them and had advised the appellants to either return the goods and receive the refund amount or remit the differential amount. The appellants on receipt of the said letter brought to the notice of the Asstt. Collector by letter dated 21.10.85 about