(a) the Appellant imported as many as 27 items - some of them in commercial quantities, e.g. baby garments 56 pieces; (b) the goods would appear to have been detained for the purpose of payment of duty; (c) it does not appear that at the time of such detention the Appellant had made any declaration whatsoever of her intention to re-export. Nor did she request for permission for such re-export; (d) for the first time in Appeal, a request for re-export was made, as was submitted before us.
2. The adjudication order does not appear to have been filed before us.
It would, however, appear that in adjudication, the goods were confiscated and a personal penalty of Rs. 3000/- was imposed. The order of adjudication was confirmed in appeal by the Appellate Collector on the ground that it was a clear case of misdeclaration, the order of confiscation was in the circumstances correct and the penalty was also not severe considering the value of the goods confiscated.
3. In the Appeal before us, only prayer made was that the goods may be permitted to be re-exported without any fine or penalty. This would necessarily imply that the order of confiscation has to be set aside.
4. It was urged by the learned counsel for the Appellant that there was neither any misdeclaration nor concealment nor any omission or commission on the part of the Appellant that could have justified the imposition of a fine or penalty. In the course of the hearing the learned counsel relied upon the cases reported in 1970 Crl. L.J. 417 (Union of India v. Khalil Khecherim) and 1981 (8) E.L.T. 153 (K.R.Ahmed Sfwh v. Addl. Collector of Customs, Madras and Ors.) (i) Sudesh Bhandari v. C.C., Delhi 1983 ECR 604 - 1983 (1) ETR 355; and wherein, the ratio of the two cases cited for the Appellant was duly considered by us.
6. After such consideration, it was held by us, inter alia, that the ratio of the case cited for the Appellant was that the goods are not liable to confiscation once a declaration has been made in terms of Section 77 of the Customs Act, 1962 and detention receipt for re-export obtained in terms of Section 80 of the Customs Act, 1962. In each of the cited cases there was a definite request for detention in terms of Section 80 of the Customs Act, 1962 and detention receipt in respect of the prohibited goods was, indeed issued.
7. That was not the case in either of the two Appeals before us in 1983 ECR 604 and 1983 (14) E.L.T. 1938 or the instant Appeal. The facts were distinguishable.
8. In the instant Appeal, it would appear that the Appellant chose to take a chance in adjudication rather than request for detention and is now asking for re-export once he (sic) found that the penalty imposed was beyond his (sic) expectations.
9. Accordingly, following the ratio of our decisions in 1983 ECR 604 and 1983 (14) E.L.T. 1938, we have no hesitation in dismissing this Appeal.