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2010 (12) TMI 85 - AT - CustomsDIFA - Duty-Free Import Authorisation - The Chemical Examiner reported the GSM (grams per square meter) of the fabrics covered by the shipping bills dated 29.9.2006, 9.10.2006 and 1.11.2006 to be 95.7, 102.8 and 94.2 respectively. The department found the GSM values reported by the Chemical Examiner to be very low compared to those declared by the exporter. - Held that - The appellant did misdeclare the GSM values thereby attracting Section 113(i) of the Customs Act. In other words, the appellant, by their commission, rendered the goods liable to confiscation. - Actual confiscation is not imperative for holding a person liable to be penalized under Section 114 of the Act. Liability of the goods to confiscation is enough for this. The goods in question, having been found liable to confiscation under Section 113(i) of the Act, were rendered so liable by the misdeclaration of its GSM by the appellant. The appellant, therefore, cannot escape the penal liability. - Quantum of fine and penalty reduced.
Issues Involved:
1. Whether the subject-goods were cleared for export under bond. 2. Whether the goods were liable to confiscation under Section 113(h) & (i) of the Customs Act. 3. Legality of the penalty imposed under Section 114 of the Customs Act. 4. Denial of benefits under the Duty-Free Import Authorization (DFIA) Scheme. Issue-wise Detailed Analysis: 1. Whether the subject-goods were cleared for export under bond: The Bench inquired if the subject-goods were cleared for export under bond, and the Departmental Representative (DR) was required to produce such a bond. Despite multiple adjournments, the Commissioner of Customs (Export) did not respond to the queries regarding the bond. Consequently, an adverse inference was drawn against the department, leading to the conclusion that the appellant was not required to execute any bond or undertaking before the goods were cleared for export. 2. Whether the goods were liable to confiscation under Section 113(h) & (i) of the Customs Act: Three consignments of manmade fabrics were presented for export with declared FOB values and GSMs. The goods were processed under the DFIA Scheme, and samples were sent to the chemical laboratory. The Chemical Examiner reported GSM values significantly lower than those declared by the exporter. Based on these findings, a show-cause notice was issued proposing the confiscation of goods under Section 113(h) & (i) of the Customs Act, imposing penalties, and denying DFIA benefits. The Commissioner ordered the confiscation of goods, allowing redemption on payment of a fine, and imposed a penalty. The appellant contested these findings, arguing that the goods were not available for confiscation, thus invalidating the fine. The Tribunal agreed with the appellant, setting aside the fine due to the absence of goods for physical confiscation. 3. Legality of the penalty imposed under Section 114 of the Customs Act: The penalty was imposed on the grounds of misdeclaration of GSM values. The appellant argued that there was no intent to misdeclare and that the shipping bills were processed through the EDI system, with actual GSM values ascertained by the Chemical Examiner. The Tribunal noted that the misdeclaration of GSM values was a significant factor, and the appellant did misdeclare the GSM values, thus attracting Section 113(i). The absence of goods did not negate the liability to confiscation. The Tribunal upheld the penalty but reduced its quantum, considering the total FOB value and lack of clarity on the basis for the high penalty amount. 4. Denial of benefits under the Duty-Free Import Authorization (DFIA) Scheme: The Commissioner denied DFIA benefits to the appellant, which was beyond his jurisdiction. The Tribunal found this aspect of the Commissioner's order objectionable and modified the order accordingly. Conclusion: The Tribunal modified the Commissioner's order, setting aside the fine due to the absence of goods for physical confiscation, upholding the penalty but reducing its quantum, and objecting to the denial of DFIA benefits as beyond jurisdiction. The appeal was disposed of in these terms.
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