2019 (1) TMI 1186 - AT - Customs

Penalties - EPCG Scheme - non-fulfilment of export obligation - case of appellant is that mention of EPCG license of Rogini by these appellants is only by inadvertence - penalty on CHA on the allegation of abetting the mis-declaration detected in the aforesaid exports. Penalty under Section 114 (iii) ibid on Uttam and Network - common plea of both the appellants is that since Rogini Garments were supplying yarn for the manufacture of the exported goods, the latter is their supporting manufacturer; hence their EPCG licence details were indicated in the shipping bills by mistake - Held that - The adjudicating authority in para-31 of the impugned order, while confirming the fact of mis-declaration in the shipping bills by both the appellants, has observed that appropriate proceedings on further investigations will have to be initiated by the concerned Customs House, where the EPCG licenses relating to Rogini have been registered. There is also no discrepancy or mis-declaration in the description and value of the goods sought to be exported - the ends of justice will be adequately served by reducing penalty imposed under Section 114 (iii) of Uttam and Network from ₹ 5,00,000/- each to ₹ 1,00,000/- each. Mis-declaration of the documents filed by Network and Uttam - there is also an allegation that Dachser had allowed Rogini Garments to endorse the shipping bills - Held that - No evidence of any sort had been adduced to support these allegations. Even in the impugned order, in Para-28 the adjudicating authority has entertained the presumption that Dachser failed to exercise due diligence on the exporters and consequently played an active role in the mis-declaration by the latter. We are afraid that such a presumption is not sufficient to establish the charge of abetment under Section 114(iii) ibid. Confiscation of goods - redemption fine - Held that - The adjudicating authority should have correctly proceeded to order confiscation of the goods and imposed redemption fine under Section 125 ibid thus gives an option for the exporters to redeem the goods. This has not been done. We therefore order modification of the impugned order in respect of paras 32 (i) and 32 (iv) to order that the goods impugned therein are confiscated under Section 113 (i) ibid. We further hold that the goods should be released on redemption fine under Section 125 ibid - the quantum of redemption fine would have to be commensurate not only on the value of the goods but also to some extent with the margin of profit of the goods and other ingredients - a redemption fine of ₹ 1,00,000/- each under Section 125 ibid on Network and Uttam would sufficiently meet the ends of justice in these cases. Appeal disposed off.

Summary

Issues:
1. Mis-declaration in shipping bills for exports against EPCG License
2. Confiscation of goods and penalties under Customs Act, 1962
3. Imposition of penalties on appellants and CHA
4. Departmental appeals regarding confiscation and release of goods

Analysis:

Issue 1: Mis-declaration in shipping bills for exports against EPCG License
The case involved mis-declaration in shipping bills for exports against an EPCG License issued to a different entity, leading to investigations and allegations of fraudulent activities to avail benefits under the EPCG Scheme. The appellants argued that the mention of the EPCG License of the other entity was a mistake due to a long-standing relationship and inadvertence. However, the tribunal found that the appellants had mis-declared the shipping bills, and there was no connection between the exported goods and the other entity. The tribunal upheld the imposition of penalties but reduced the quantum for the appellants.

Issue 2: Confiscation of goods and penalties under Customs Act, 1962
The adjudicating authority had proposed confiscation of goods attempted to be exported by the appellants under the Customs Act, 1962. The tribunal found merit in the arguments presented by the department regarding the confiscation of goods and the imposition of redemption fines. It ordered modification of the impugned order to confirm the confiscation of goods and release them on redemption fines, considering the gravity of the offense alleged.

Issue 3: Imposition of penalties on appellants and CHA
The tribunal analyzed the allegations of abetment against the CHA and found that there was insufficient evidence to establish active connivance or abetment. It cited precedents to support its decision that penalties under the Customs Act cannot be imposed without clear evidence of wrongdoing. The tribunal partly allowed the appeal filed by the CHA against the imposition of penalties.

Issue 4: Departmental appeals regarding confiscation and release of goods
The department had filed appeals challenging the failure of the adjudicating authority to order confiscation of goods and impose redemption fines. The tribunal agreed with the department's arguments and ordered modification of the impugned order to confirm the confiscation of goods and release them on redemption fines, considering the circumstances of the case and the lack of mis-declaration in the goods.

In conclusion, the tribunal partly allowed the appeals filed by the appellants and the CHA, while also allowing the departmental appeals by modifying the impugned orders to confirm the confiscation of goods and release them on redemption fines. The judgment emphasized the importance of accurate declarations in shipping bills and the need for clear evidence to impose penalties under the Customs Act.