2007 (6) TMI 13 - AT - Customs

Demand(Customs)- Alleged that appellant wrongly availed the DEPB credit and accordingly proposing to recover the DEPB credit and also confiscate the good and impose penalty on him After considering detail the respective authority allow the appeal partly

Summary

Issues:
1. Recovery of DEPB credit wrongly availed by exporters under Customs Act.
2. Confiscation of goods and imposition of penalty under Customs Act.
3. Jurisdictional conflict between Customs authorities and DGFT.
4. Applicability of Section 28 of the Customs Act and Tribunal precedents.
5. Validity of penalties imposed by the Commissioner.

Analysis:
1. The appellants exported goods to Srilanka claiming DEPB benefit, but discrepancies were found by Srilankan Customs. The Indian investigating agency, DRI, issued a show-cause notice proposing recovery of DEPB credit, confiscation of goods, and penalties. The Commissioner of Customs passed an order denying DEPB credit, confirming demands, ordering appropriation of payments, and imposing penalties and fines. The appellants contested these proposals on various grounds.

2. The appellants argued that recovery of DEPB credit falls under DGFT's purview, not Customs authorities, citing Tribunal precedents. They highlighted a pending appeal with the appellate authority under the Foreign Trade Act, questioning Customs' parallel proceedings. The SDR argued Customs' powers recognized by the Supreme Court and High Court, asserting the liability of exporters for overvaluing goods for DEPB benefits.

3. The Tribunal found that DEPB credit recovery is DGFT's domain, not Customs, based on established precedents. The Jt. DGFT had already initiated proceedings against the appellants for DEPB credit recovery, leading to cancellation of licenses and penalties. The demand made by the Commissioner under Section 28 of the Customs Act was deemed unsustainable.

4. While the goods were deemed liable for confiscation under Section 113(d) due to misdeclaration for DEPB benefits, the Tribunal noted the absence of evidence supporting fraudulent intent. The absence of complaints or evidence from the Srilankan buyer raised doubts on the fraudulent nature of the exports, aligning with the High Court's ruling applicable to fraudulent exports only.

5. The Commissioner's imposition of fines and penalties beyond the scope of the show-cause notice was deemed invalid. The Tribunal set aside the demands for DEPB credit recovery, upheld goods' confiscation but annulled the redemption fine, and nullified the penalties imposed under Section 114 of the Customs Act. The appeal was allowed in part, emphasizing the limitations on Customs authorities' powers in DEPB credit recovery matters.