1998 (10) TMI 282 - AT - Customs

Summary

Issues Involved:
1. Misdeclaration of goods for export.
2. Liability for confiscation and penalties.
3. Alleged collusion between exporter and manufacturer.
4. Enhancement of penalties by Revenue.
5. Individual liability of company directors.

Detailed Analysis:

1. Misdeclaration of Goods for Export:
The facts reveal that M/s. Ratan Exports (RE) and M/s. Sujata Data Products Ltd. (SDPL) attempted to export incomplete floppy disk drives (FDDs) as fully finished products, misdeclaring the value and fraudulently claiming a drawback of Rs. 22,53,264/-. The examination report by Customs confirmed that the goods were virtually junk, with only the outer appearance being that of complete FDDs. The tribunal concluded that the goods did not conform to the declared description or value, establishing clear misdeclaration.

2. Liability for Confiscation and Penalties:
The tribunal found that the seals on the container were intact, indicating no tampering en route. It concluded that SDPL misdeclared the goods on the AR4 form and took advantage of the AR4 procedure to pack substandard goods for export. Both RE and SDPL were held liable for the misdeclaration. The tribunal cited precedents where misdeclaration under the Customs Act entailed penal action, affirming that both parties were liable for penalties.

3. Alleged Collusion Between Exporter and Manufacturer:
The tribunal examined the evidence and found that there was sufficient indication of collusion between RE and SDPL. The agreement between the two parties included clauses for pre-shipment inspection and indemnification for defects, which were not adhered to. The tribunal concluded that SDPL would not have dared to supply junk without a tacit understanding with RE. The tribunal found that RE's failure to inspect the goods and the advance payment of Rs. 38 lakhs to SDPL supported the conclusion of collusion.

4. Enhancement of Penalties by Revenue:
The tribunal considered the Revenue's cross-appeal for enhancement of penalties. It noted that the penalties imposed were too low given the potential illicit gains and the fraud on the national exchequer. The tribunal enhanced the penalty on SDPL from Rs. 1 lakh to Rs. 10 lakhs and on RE from Rs. 1 lakh to Rs. 5 lakhs, considering the magnitude of the fraud and the potential loss to the exchequer.

5. Individual Liability of Company Directors:
The tribunal examined the appeal of Shri Alok P. Gupta, Director of SDPL. It acknowledged that Gupta, being an NRI, could not have been involved in the day-to-day operations of the company. However, since he negotiated the deal, he was a party to the offense. The tribunal reduced the penalty on Gupta to Rs. 10,000/- considering his limited involvement. The penalty on Shri Ratan Bagaria was confirmed at Rs. 10,000/-.

Conclusion:
The tribunal upheld the confiscation of goods and penalties on both RE and SDPL for misdeclaration and fraudulent export attempts. It found evidence of collusion between the two parties and enhanced the penalties accordingly. The individual liability of directors was also addressed, with penalties adjusted based on their involvement. The appeals were disposed of as per the orders detailed above.