1. The business-cum-residential premises of Shri Radhakrishan Gupta, proprietor of the firm at Model Basti, Delhi was searched by officers of the Directorate of Revenue Intelligence on 3-1-77 and 2932 pairs of multifocal semi-finished lenses of assorted power 54x53 mm size and of USA origin, valued at Rs. 15,000/- were recovered. On demand, Shri Gupta did not produce any document showing the lawful acquisition/import of goods. After investigation, a notice was issued on 18-6-77 by the Assistant Collector Customs (Preventive), Delhi, to the party to show cause why the said lenses should not be confiscated Under/Section l11(d) of the Customs Act 1962, for violation of Section 11 read with Import Trade Control Order No. 17/5.5 issued under Section 3 of the Imports & Exports Control Act, 1947. In his reply and during personal hearing, Shri Radhakrishan pleaded that these lenses had been imported under Bill of Entry No. 1576/131 dated 20-3-71 at Bombay Port against an Import Licence dated 6-5-70 and that these lenses had been released after imposing a fine in lieu of confiscation, since they were found to be bifocal lenses, whereas the licence/invoice were for the import of rough blanks. He pleaded for release of the goods.
2. The Assistant Collector held that the Import Licence being for rough blanks and the consignment actually imported being bifocal lenses, the consignment released by the Customs at Bombay could not be identified with the seized goods which consisted of multifocal i.e. bifocal and trifocal lenses. He also relied on the statement of Shri Gupta that they had never imported any consignment of lenses and had been carrying on their business with local purchases. They were not also able to produce any books of account regarding the consumption of the lenses said to have been imported by them. He, therefore, held that the lenses in question were not lawfully imported or acquired in a bona fide manner by the said Indian Optical Company and he confiscated them under the provisions of the Customs Act, 1962 without giving any option for redemption and also imposed a penalty of Rs. 1,000/-.
3. Being aggrieved with this order, an appeal was filed before the Appellate Collector of Customs, New Delhi. In her order dated 12-1-79, the Appellate Collector did not accept the plea that the term "multifocal" is synonymous with "bifocal" and since the party had not produced any evidence to show that the goods seized were the same as those released by the Customs, held that there was force in the reasoning of the Assistant Collector that in the absence of any records showing consumption of the goods imported at Bombay, their stand was not acceptable. While upholding the order of the Assistant Collector, however, an option was given to the party to redeem the confiscated goods on payment of redemption fine of Rs. 15,000/-.
4. A revision application was then filed before the Government of India and this has been transferred to the Appellate Tribunal to be dealt with in accordance with Section 131B(2) of the Customs Act.
5. Shri B. Saxena, Advocate for the Appellant, submitted a letter of authority from a firm named 'Delton', who had an import licence as actual users, under which Shri Gupta had imported lenses from USA.These lenses were released after adjudication. Shri Gupta, it was urged, was perturbed at the time of search and seizure and could not explain the correct position then. In fact 3000 pairs of lenses had been taken over from M/s Delton, a firm which wound up its business and was entered in the stock books as "D-Bifocal and Trifocal" from year to year in 1975-76 and 1976-77. In December, 1977 a Voluntary Disclosure was made to the Income Tax authorities when they had taken these goods into their stock accounts from the actual users and requisite amount of Income-tax was also paid. A photostat copy of the declaration was also produced. Counsel stated that the white cartons containing the seized goods are the original ones imported at Bombay which has been confirmed by the American Exporter in his letter dated 19-5-78. The shipper has also confirmed that 5120 pairs of semi-finished multifocal (D-Bifocal and Trifocal) lenses were supplied under their invoice dated 18-1-71 under the description of "rough blanks". The Counsel further argued that the term "multifocal" is synonymous with "bifocal" or "trifocal" and that the Appellate Collector's decision that the term multifocal is not synonymous with bifocal is not correct. He explained that the term "D-bifocal" was used in the show-cause memo and adjudication order since the licence was for rough blanks whereas the goods were actually "D-bifocal" and "trifocal", which were released after payment of penalty. Though they had furnished all evidence to the Appellate Collector to prove the lawful import, they had been denied justice. The order of the Appellate Collector is also against the law since there could not be two adjudication orders namely, by the Assistant Collectors, Bombay and Delhi, for the same goods. Counsel pleaded that the order may be set aside and the goods restored.
6. The case for the Department was argued by Shri Yuvraj Gupta, Senior Departmental Representative. He pointed out that if the party had made 'Voluntary Disclosure' of receipt of 3000 lenses to the Income Tax authorities, they should have maintained proper accounts to satisfy the officers of the Directorate of Revenue Intelligence at the time of seizure. He did not agree that the term "bifocal" was synonymous with "multifocal" and "trifocal". There was no double adjudication, as contended by the appellant, since the goods were not the same in the two cases. He also pointed out that the clearing agents in a letter dated 8-4-71 to the Bombay Customs Authorities in connection with the earlier consignment had clearly mentioned that it contained "bifocal lenses", hence the confiscated goods consisting of mixed bifocal and trifocal lenses, which is the subject of this appeal, is quite different. He wanted the appeal to be rejected.
7. The main contention of the appellants is that the seized lenses are identical with the ones earlier released by the Customs. They have sought to adduce collateral evidence by way of supplier's clarifications, identity of packing, actual user's letter of authority etc., to substantiate that these 2932 lenses are out of the consignment of 5000 lenses earlier released and taken into their stock account from M/s Delton. In the face of the categorical assertion of the Clearing Agent that the earlier consignment contained only "bifocal" lenses, they are now estopped from pleading that "bifocal" means "multifocal" and includes "trifocal" lenses. Had the Customs then been aware that trifocal lenses had also been imported, along with bifocal lenses, in violation of the policy/licence for import of "rough blanks other than bifocal blanks", the fine and penalty may well have been enhanced. It would be naive to accept the plea in rebuttal by Counsel that the Clearing Agent had "unfortunately" used the "incorrect" word "bifocal".
To this extent the order of the Appellate Collector has force and confiscation and penalty are in order.
8. The Tribunal, however, takes note of the fact that lenses are not notified goods under Chapter IV-A of the Customs Act requiring meticulous accounting at every stage. There is evidence that this party had access to 3000 "bifocal" lenses being part of 5000 lenses covered by a Bill of Entry dated 20-3-71 and cleared on payment of Customs duty totalling Rs. 9163/- and a fine of Rs. 5000/- after adjudication at Bombay. All the seized bifocal lenses might not, therefore, be tarred with the brush of illegal import. The Department had also not been able to establish where and when the illegal import of the lenses took place and whether it was by air, sea or land. The case does not, therefore, appear to call for the maximum redemption fine prescribed in Section 125 of the Customs Act, which is what has been imposed by the Appellate Collector. The ends of justice would be met if the fine and penalty are reduced by fifty per cent and the Tribunal orders accordingly.