K. Gopal Hegde, Member (J)

1. This appeal arises out of and is directed against the Order No. S/10-50/83-D, dated 13.4.1983 passed by the Additional Collector of Customs, Bombay.

2. The undisputed facts of this appeal are :

The appellants M/s. Peejay Maya Exports placed an order for 3 containers of brass scrap of NARI specification N.F.80. The foreign suppliers supplied the intended goods in three different consignments. The appellants cleared two of the consignments. When the appellants sought to clear the third consignment, the customs objected for the clearance that the goods contained in 55 drums are not the goods declared in the Bill of Entry and they cannot be cleared under OGL. The appellants pleaded before the customs authorities that there had been a wrong supply and the goods indented by them were not the goods supplied. In support of their contention, they have produced a copy of the indent, invoice, packing specification as well as Bill of Lading. The description given in these documents tallied with the description given in the Bill of Entry by the appellants. The appellants pleaded that they were unaware of the contents till it was examined in their presence by the customs authorities. After examination of the goods they even requested the customs authorities to allow them to re-export. To show their bona fide the appellants sent a telex message to the foreign suppliers. They made it clear to the suppliers that they were put in an awkward position. It would not be possible to clear the container and the same should be re-shipped at the cost of the suppliers. The telex was sent on 7.3.1983 and on the next day the appellants received a reply from the suppliers admitting wrong shipment. They expressed their regret for the inconvenience caused and enquired whether it would be possible for the appellants to clear the goods as re-shipment back would result heavy loss to them. On the next day, i.e. on 9.3.1983 the appellants sent another telex requiring the suppliers to accept re-shipment and making it clear that all charges will be to their account. The appellants also produced copies of Bills of Entries to satisfy the customs that in respect of the same indent they had cleared two of the consignments. The Additional Collector of Customs who held the adjudication, without assigning any reason whatsoever, passed an order directing confiscation, but allowed re-export on a fine of Rs. 21,000/-. It is this order that is the subject-matter of challenge in this appeal.

3. Shri Pushkarna appearing for the appellants submitted that there had been no wilful misdeclaration of the 'goods on the part of the appellants. They have acted bona fide. The entire blame was on the part of the suppliers and they have accepted the blame. In the circumstances the Additional Collector was not justified in imposing fine while allowing re-shipment. He submitted that due to the fault of the suppliers, the appellants have suffered. They have incurred heavy demurrage. He, therefore, prayed that the fine imposed by the Additional Collector may be set aside.

4. Shri Prabhu appearing for the Collector submitted that the goods imported by the appellants under OGL at the relevant time were not covered by OGL and the appellants have not produced by licence to cover the goods. Therefore, the Additional Collector was justified in ordering confiscation. Shri Prabhu also submitted that the fine was imposed in pursuance of Section 125 of. the Customs Act. The fine works out to, according to Shri Prabhu, only about 10% of the value of the goods. He, therefore, prayed that the appeal may be rejected.

5. I have carefully considered the submissions made on both the sides. In the whole of this order the Additional Collector did not consider the plea of the appellants that there had been a wrong shipment by the suppliers. The documents produced by them in support of their claim had not been considered at all. There is no finding that there was any mis-declaration o