P.C. Jain, Member (T)

1. Brief facts of the case are as follows:

The appellant imported certain items for its industrial activities and sought clearance against 3 bills of entry as follows:

(i) 210339 dated 20-2-1988 of the value of Rs. 1,62,364/-;

(ii) 210338 dated 20-2-1988 of the CIF value of Rs. 1,62,365/-;

(iii) 208628 dated 12-2-1988 of the CIF value of Rs. 1,62,601/-.

Some of the goods fall under O.G.L. and some other items required specific import licence.

1.2 On a routine check by the Customs authorities, from the licence issuing authority, namely CCI & E's office it was revealed that the endorsement found on the licence No. P/L/3179662/XX/105/2/87-dated 10-11-1987 was forged; it was, therefore, suggested by the DCCI & E that the goods against this licence should not be cleared.

1.3 It was also alleged by the department that the value declared by the appellant for various goods appeared to be on the lower side.

1.4 The appellant in reply to the show cause notice dated 10-5-1988 pleaded that it had bona fidely purchased the said licence available in the market for which no restriction is there. Hence, it could not be alleged on any reasonable basis that the appellant had connived in presenting this licence for clearance of the goods. He stated that the forgery was not committed by him. The appellant also offered to produce another licence No. REP/P/K/L/M/3160423 dated 25-8-1987 for Rs. 5 lacs favouring M/s. KEC International Ltd., Lal Bahadur Shastri Marg, Bombay but his request was turned down by the adjudicating authority on the ground that the appellant has come up with another licence only after the department has issued a show cause notice and only after he has come to know from the department that the licence was a forged one. It has, therefore, been held by the adjudicating authority that the goods had been imported without a licence. The judgments of the Calcutta High Court and of the Supreme Court cited by the appellant in the cases of (i) Chemi Colour Agency and Anr. v. CCI & E [MANU/WB/0080/1985 : 1987 (30) E.L.T. 175 Cal.] and (ii) East India Commercial Company Ltd. v. CCE Calcutta [MANU/SC/0179/1962 : 1983 (13) E.L.T. 1342 (S.C.)] were not found relevant and directly related to the facts of this case. He, therefore, confiscated the goods under Section 111(d) of the Customs Act, 1962 with an option to the importer to re-export the goods under Customs escort within one month from the date of communication of the order with Rs. 71250/- as a redemption fine in all. As personal penalty of Rs. 50,000/- was also imposed on the importer/appellant under Section 112(a) of the said Act.

2. From the memo of appeal it appears that the option for re-export after payment of redemption fine and penalty, as imposed above, has already been exercised by the appellant; that is why the appellant has made, inter alia, the following prayers :

(a) Order refund of Rs. 1,58,106/- on account of demurrage paid;

(b) Order refund of freight to and fro for import and re-export of the amount of Rs. 14,026/- (Rs. 7013/- for re-export and Rs. 7013 for import).

3. We have heard the learned counsel for the appellant and the learned SDR. We find that the adjudicating authority's finding for not entertaining the second licence for clearance of the goods is not correct in law. If there is another valid licence which can cover the importation of goods, there is no reason why production of such a licence should not be considered for clearance of the goods. In any case this question now is only of academic importance because the goods have since been cleared for re-export as directed in the impugned order and therefore, the question of considering the clearance of the goods against another licence at this stage does not arise. Imposition of redemption fine on confiscation of goods under Section 111(d) while giving an option for re-export of the goods is not correct in law. When the goods are confiscated because of any ITC prohibition in terms of Section 1