2014 (3) TMI 246 - AT - Customs

Redemption fine and penalty - allegation of export of non-basmati rice by mis-declaring the same as Basmati rice - Held that - , the Division Bench of this Tribunal in M/s M.K.Shipping Services 2012 (11) TMI 531 - CESTAT, MUMBAI after considering the facts and circumstances has found that from a copy of the report obtained by the appellant from the Revenue under RTI Act, it is evident that the export was made of rice-milled basmati rice . Further, test report was not considered either by the enquiry authority or by the adjudicating authority. Further, since the goods under export having been proved to be basmati rice, the charges of mis-declaration of goods under export, which was the basis for investigation is vitiated and accordingly, it is held that there is no case of mis-declaration made out. It is just and proper that these appeals have to be allowed in favour of the appellants and accordingly, the order of confiscation is set aside as well as the penalty imposed on the appellant firm and penalty imposed on Shri Santosh Chawla, Manager of the Exporting firm as well as the penalty imposed on CHA Shri Mukesh D Thakkar are set aside. - Decided in favor of assessee.

Summary

Issues Involved:
1. Confiscation of goods.
2. Imposition of redemption fine and penalties.
3. Validity of test reports and evidence.
4. Mis-declaration of exported goods.
5. Retraction of statements by the appellants.
6. Liability and penalties on the Customs House Agent (CHA).

Issue-wise Detailed Analysis:

1. Confiscation of Goods:
The appeals were filed against the order upholding the confiscation of goods intended for export by M/s Chawla Trading Company. The goods were suspected to be non-basmati rice, mis-declared as basmati rice. The Commissioner of Customs (Appeals) had upheld the confiscation but reduced the redemption fine and penalties. The Tribunal found that there was no case of mis-declaration made out, thus setting aside the order of confiscation.

2. Imposition of Redemption Fine and Penalties:
The Commissioner of Customs (Appeals) reduced the redemption fine from Rs. 50 lakhs to Rs. 5 lakhs and penalties on M/s Chawla Trading Company from Rs. 50 lakhs to Rs. 5 lakhs, and on Shri Santosh Chawla from Rs. 10 lakhs to Rs. 2 lakhs. The Tribunal further set aside these penalties, agreeing with the appellants that there was no mis-declaration.

3. Validity of Test Reports and Evidence:
The appellants contested the reliability of the test reports from Intertek India Pvt. Ltd. and Basmati Export Development Foundation. They argued that only Agmark Testing Centre's reports were valid as per Circular No. 33/2008. The Tribunal noted the variance in test results from three different laboratories and found that the reports from government-recognized laboratories (Agmark and BEDF) supported the appellants' contention, leading to the conclusion that there was no mis-declaration.

4. Mis-declaration of Exported Goods:
The show-cause notice alleged that M/s Chawla Trading Company exported non-basmati rice by mis-declaring it as basmati rice. However, the Tribunal found that the evidence did not support this allegation. The test reports from government-recognized laboratories indicated a mix of basmati and non-basmati rice, with basmati rice being present in a significant percentage. Thus, the Tribunal concluded that there was no mis-declaration.

5. Retraction of Statements by the Appellants:
Shri Santosh Chawla retracted his statements made under Section 108 of the Customs Act, claiming they were made under duress. The Tribunal considered these retractions and found that the initial statements could not be solely relied upon for imposing penalties and confiscation, especially in light of the contradictory test reports.

6. Liability and Penalties on the Customs House Agent (CHA):
Shri Mukesh D. Thakkar, the CHA, was initially imposed a penalty of Rs. 20 lakhs, which was reduced to Rs. 4 lakhs by the Commissioner of Customs (Appeals). The Tribunal set aside this penalty, agreeing with the appellants that there was no corroborative evidence of mis-declaration or involvement in illegal activities.

Conclusion:
The Tribunal allowed the appeals, setting aside the orders of confiscation and penalties imposed on M/s Chawla Trading Company, Shri Santosh Chawla, and Shri Mukesh D. Thakkar. The Tribunal found no case of mis-declaration and concluded that the penalties and confiscation were not justified based on the evidence presented. The appeals were allowed with consequential relief.