Per V.K. Agrawal :

The present appeal has been filed by M/s. Association for Developing Youth (India) against the order-in-original No. KDL/COMMR/23/97 dated 29.7.97, passed by the Commissioner, Customs, Kandla.

2. Briefly stated the facts are that three consignments of old and used cloths had been imported and the name of the consignee shown was M/s. Association for Developing Youth (India) H.No. 29, Sector 4, Gurgaon, Haryana. Intelligence was received by the Directorate of Revenue Intelligence to the effect that imported old and used cloth were meant to be cleared free of customs duty claiming them to be meant for free distribution to the poor, but actually these were to be sold in the market. Investigation revealed that the address belonged to Shri Hitesh Kumar Sharma who, in his statement dated 4.6.96, stated that he was the owner of the House No. 29, Sector 4, Gurgaon; that he had no connection with the said Association; that one Shri Gopal Krishna Sharma used to stay in his house and he had heard about Association from Sharma. Shri Sharma, in his statement dated 4.6.96, stated that the consignment was sent by Shri Hardayal Singh on behalf of the International Social Welfare Society, U.S.A. Inquiries also revealed that the Association was registered with the Registrar of Society, Delhi and the registered address of the Association was 12/3, Saket Block, Mandawali, Fazalpur, Delhi and that Shri Gopal Krishna Sharma was neither an office bearer nor a member of the Association. The Commissioner of Customs, under the impugned order, confiscated the goods absolutely under Section 111 (d) of the Customs Act, holding that Shri Sharma had no locus standi in the importation of the goods as he was not registered as an authorised representative of the real charitable institution whose address is different, whose authentic memorandum of association is different in which the name of said Sharma is not found either in the list of Governing Body of Members or Founder Members; that Shri Sharma has just tried to use the name of the Association in a fraudulent manner to import old and used garments which being a consumer item, cannot be imported except under licence as per para 156A of the EXIM Policy, 1992-97.

3. Shri G.L. Rawal, learned Advocate, submitted that the Association is a genuine charitable society and competent to represent the Association; that the Society registered at Delhi can have offices any where in India; that the Act is applicable all over the country subject to modification by the State Government; that in any case if intimation of change in address has not gone to the Registrar of Societies, it would not change the legal situation; that the goods were received from the philentropic Society and were meant to be distributed to the poor and needy without any cost. He also submitted that Assistant Director, D.R.I. has no legal authority to issue the show cause notice as held in the case of Collector of Customs Vs. Poona Roller, 1996 (16) RLT 201 (CEGAT) = 1997 (89) ELT 604; that accordingly entire proceedings are vitiated in law. He also mentioned that Section 111 (o) of the Customs Act is not applicable to the facts of the present case; that it is not open to the Commissioner to invoke any other provision i.e. Section 111 (d) which will come into play only if a particular consignment has been imported contrary to the provisions of the Customs Act. He also mentioned that even as per the statement of the owner of the house, Shri Sharma has been residing in the premises at the address shown; that if there was no particular activity, it does not mean that the Association has vanished; that proper course for the Department would have been to permit clearance of the goods and keep an eye on the distribution of the goods. He further contended that according to Revenue, department had deputed a person to investigate bonafide of the donor but result was awaited; that it is wrong as during the period of import on 14.3.96 and