2015 (3) TMI 511 - AT - Customs

Misdeclaration of goods - allegation of claiming excess export incentives was proved only after the test of the impugned goods conducted by the Customs - Pre deposit ordered - Non compliance of pre deposit order - Held that - While considering the stay application, there is a factual error has been committed by the Commissioner (Appeals) holding that the appellant has claimed undue export incentives. In fact, the appellant is a CHA only and he has no concern with the export incentives given by the department but the same was given to the exporter only. In these circumstances, the impugned order deserves no merits. Accordingly, I set aside the impugned order and remand the matter back to the Commissioner (Appeals) to consider the contentions of the appellant afresh to decide the stay application first thereafter to decide the appeal on merits - Decided in favour of appellant.

Summary

Issues:
- Appeal against dismissal for non-compliance with Section 129E of the Customs Act, 1962
- Allegation of misdeclaration of goods for excess export incentives
- Factual error in the Commissioner's order regarding undue export incentives

Analysis:
1. The appellant, a Customs House Agent (CHA), appealed against the dismissal of their appeal due to non-compliance with Section 129E of the Customs Act, 1962. The appellant was involved in filing export documents for goods to be exported by a company. Upon investigation, it was discovered that the description/composition of the exported goods was misdeclared to obtain excess export incentives. The Customs confirmed a penalty of &8377;1,00,000 against the appellant for their alleged involvement in the misdeclaration.

2. The Commissioner (Appeals) observed a premeditated modus operandi aimed at defrauding revenue by claiming undue export incentives. The appellant was directed to make a pre-deposit of &8377;50,000, which they failed to do, leading to the dismissal of their appeal under Section 129E. The appellant challenged this order, highlighting a factual error made by the Commissioner regarding the appellant's involvement in claiming export incentives. The appellant clarified that as a CHA, they had no role in claiming export incentives, which were the exporter's concern.

3. The Tribunal, after hearing both sides and examining the records, found the Commissioner's error regarding the appellant's involvement in claiming undue export incentives. The Tribunal emphasized that the export incentives were not claimed by the appellant but by the exporter. Consequently, the impugned order was set aside, and the matter was remanded back to the Commissioner (Appeals) for reconsideration. The Tribunal instructed the Commissioner to review the appellant's contentions afresh, decide the stay application first, and then proceed to evaluate the appeal on its merits.

4. In conclusion, the Tribunal disposed of the stay application and the appeal, emphasizing the need for a fresh consideration of the appellant's case without the erroneous assumption of their involvement in claiming export incentives. The judgment focused on rectifying the factual error and ensuring a fair assessment of the appellant's position in the matter.