KIRTI SALES CORPN. Vs. CC

JUDGEMENT

(1.) THIS appeal by the assessee is directed against the order of the Commissioner of Customs dated 31.05.2005 directing confiscation of the goods under Section 111(m) of the Customs Act, but allowing release on payment of redemption fine of Rs. 5 lacs, and imposing penalty of Rs. 1.5 lacs on the appellant under Section 112(a) of the Customs Act.

(2.) THE subject goods are Polyester Woven Fabric and the appellant imported them under five consignments declaring them as non -texturised. The case of the appellant is that the description of goods was as per the invoice of the overseas supplier, certificate of origin as well as test report made available by the overseas supplier wherein goods had been described as fabric (non -texturised). The appellant accordingly filed Bill of Entry declaring the goods as fabric (non -texturised).

(3.) DWELLING upon the latter part of the appellant's case about the loss which the appellant was incurring on account of delay in adjudication, it was submitted that the appellant was having to pay 34 US $ per container per day and also Rs. 200/ - as ground rent per day, and considering that five months had already lapsed and the conclusion of the adjudication process was nowhere in sight, the appellant was left with no option but to agree to clear the consignment under the proposed classification subject, of course, to the final outcome of the dispute. It was submitted that in identical situation, the Tribunal in Shree Ganesh International v. Commissioner of Central Excise, Jaipur, , has held that where the declaration in the Bill of Entry is made on the basis of documents received by the importer from foreign supplier, the description even if found to be wrong, cannot be regarded as mis -declaration within the meaning of Section 111(m) of the Customs Act, so as to make the goods liable to confiscation, payment of redemption fine and penalty. It was submitted that the decision in Shree Ganesh International has been followed by the Tribunal in many cases subsequently.