9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2010 (5) TMI 741 - AT - CustomsMisdeclaration of goods - the actual gross weight of the goods was 7011 kgs, as against the declared weight of 9699.76 kgs. There was a difference of 2687.24 kgs. in the weight - it was alleged that misdeclaration was with an intention to avail higher drawback - Held that - it is a case of export of the consignment to avail duty drawback. In this case, the exporter did no verify the contents like weight and nature of the goods and filed the shipping bills. It is duty of the exporter to examine and verify the contents like weight and nature of the goods before exportation. The exporter cannot take excuse that the shipping bills have been filed on the basis of the invoices supplied by the supplier of the goods - In the case of import, importer has to depend on the invoice/import documents. But in the case of export, the exporter is duty bound to export the goods as per specifications mentioned in the invoice and shipping bills - confiscation and penalty upheld. The redemption fine and the penalties are highly excessive on the appellant - the redemption fine reduced from ₹ 5 lakhs to ₹ 2 lakhs and penalty from ₹ 2 lakhs to ₹ 50,000/-. Penalty on partner - Held that - The penalty on Shri Gulam Mohd. A. Wahab is not sustainable in view of the decision in the case of Jupiter Exports 2007 (6) TMI 2 - HIGH COURT, BOMBAY , wherein the Hon ble High Court has held that no separate penalty be imposed on the partner when the partnership firm is penalized - penalty on partner set aside. Penalty on CHA - Held that - CHA has acted in the bona fide belief documents supplied to him for preparing shipping bills and no statement of the CHA was recorded and there is no statement of the exporter that CHA was having any knowledge about misdeclaration of the goods - penalty on CHA waived. Penalty on appellant - Held that - the Commissioner has given the benefit of doubt to the appellant as no investigation took place with regard to the role of the appellant. When the Commissioner has held that appellant has been given the benefit of doubt with regard to his actions as Apprising Officer in examining the shipping bills, hence protection u/s 155 of the CA, 1962 is available to the Appraising Officer. Appeal allowed - decided partly in favor of appellant.
Issues Involved:
1. Confiscation of export goods. 2. Imposition of redemption fine. 3. Imposition of penalties on various parties under Section 113 of the Customs Act, 1962. 4. Role and liability of the Clearing House Agent (CHA). 5. Role and liability of the Appraising Officer. Issue-wise Detailed Analysis: 1. Confiscation of Export Goods: The tribunal confirmed the confiscation of goods exported by M/s. G.M. Enterprises (GME) under Section 113 of the Customs Act, 1962. The goods were misdeclared in terms of weight and nickel content to avail higher duty drawback. The declared weight was 9699.76 kgs, while the actual weight was 7011 kgs, and the nickel content was significantly lower than declared. The tribunal held that it is the duty of the exporter to verify the contents of the goods before exportation and that the exporter cannot rely solely on the supplier's invoices for such verification. 2. Imposition of Redemption Fine: The tribunal found the originally imposed redemption fine of Rs. 5 lakhs to be excessive. It reduced the fine to Rs. 2 lakhs, considering the arguments presented by the appellant's counsel. 3. Imposition of Penalties on Various Parties: - M/s. G.M. Enterprises (GME): The penalty on GME was confirmed but reduced from Rs. 2 lakhs to Rs. 50,000/-. - Shri Gulam Mohd. A. Wahab: The penalty on Shri Gulam Mohd. A. Wahab, a partner of GME, was waived. The tribunal cited the case of Commissioner of Customs (EP) v. Jupiter Exports, where it was held that no separate penalty should be imposed on a partner when the partnership firm is penalized. 4. Role and Liability of the Clearing House Agent (CHA): The tribunal found that M/s. Sainath Clearing Agency (CHA) acted in bona fide belief based on the documents supplied by the exporter. There was no evidence or statement indicating that the CHA had knowledge of the misdeclaration. The penalty imposed on the CHA was waived, citing the decision in V. Esakia Pillai v. Commissioner of Customs, Chennai, where it was held that penalty cannot be imposed in the absence of evidence showing knowledge or connivance in the misdeclaration. 5. Role and Liability of the Appraising Officer: The tribunal set aside the penalty against Shri Harsh Srivastava, the Appraising Officer. The Commissioner had given the benefit of doubt to the officer, stating that no proper investigation was conducted regarding his role. The tribunal referenced the case of Commissioner of Customs, New Delhi v. M.I. Khan, which provided protection under Section 155 of the Customs Act, 1962, to customs officers from penal proceedings in the absence of evidence showing connivance in the misdeclaration. Conclusion: The appeals were disposed of with the following modifications: the confiscation of goods and penalty on GME were confirmed but with reduced fines; penalties on Shri Gulam Mohd. A. Wahab, CHA, and the Appraising Officer were waived. The tribunal emphasized the duty of the exporter to verify the goods before export and the lack of evidence against the CHA and the Appraising Officer.
|
