2012 (8) TMI 381 - AT - Customs

Whether the goods, namely, automobile parts exported by the appellant is eligible for all industry rate of drawback Held that - Item steering knuckle falls under chapter 87 of the Customs Tariff and hence the all industry rate of drawback for the said item can not be claimed against goods for which rate has been prescribed under chapter 73 - if a product falls under chapter 87, benefit of drawback is not available merely because the product description matches with those given for goods falling under chapter 73 - appellant is not eligible for duty drawback at all industry rates on the impugned goods under serial nos. 73.29 and 73.30 of the drawback schedule as it stood at the relevant time Whether the goods already exported are liable to confiscation and if so, whether penalty is imposable - appellant did not furnish the correct description of the goods under export either in the shipping bill or in the export invoice - appellant sought ineligible drawback by mis-declaring the goods - appellant has submitted that in the instant case the goods have not been seized at all the hence they cannot be confiscated Held that - Section 113 deals with liability to confiscation and not actual confiscation - section nowhere states the goods should be seized to determine the liability to confiscation - merely because the goods have been examined by the central excise authorities does not absolve the appellants of their responsibility of making the correct declarations in the export documents - This can at best a factor for determination of quantum of penalty and not for imposition of penalty per se Penalty reduced

Summary

Issues Involved:
1. Eligibility for all industry rate of drawback under serial nos. 73.29 and 73.30 of the Drawback Schedule.
2. Liability of the exported goods to confiscation.
3. Imposition of fine and penalty.
4. Conversion of drawback shipping bills to DEPB shipping bills.
5. Admission of additional evidence.

Detailed Analysis:

1. Eligibility for All Industry Rate of Drawback:
The primary issue was whether the exported automobile parts were eligible for the all industry rate of drawback under serial nos. 73.29 and 73.30 of the Drawback Schedule. The appellant, a manufacturer of automobile parts, had exported items such as machined crankshaft, forged crankshaft, steering knuckle, front axle beam, valve body, and stub axle, claiming drawback under the aforementioned serial numbers. The appellant argued that the goods matched the descriptions in the Drawback Schedule and had been verified by central excise officers. However, the Tribunal found that the goods, particularly the steering knuckles, were classified under heading No. 87.08 of the Customs Tariff, which was not eligible for the claimed drawback rates. The Tribunal emphasized that the Drawback Schedule was aligned with the Customs Tariff at the chapter level, and the goods must fall under the specified chapter to be eligible for the drawback. Consequently, the Tribunal held that the appellant's claim lacked substance and merit.

2. Liability of the Exported Goods to Confiscation:
The Tribunal examined whether the goods were liable to confiscation under Section 113 of the Customs Act, 1962. It was found that the appellant had mis-declared the goods in the shipping bills and export invoices to claim ineligible drawbacks. The goods were actually classifiable under heading No. 87.08 and did not correspond to the declared entries under serial nos. 73.29 and 73.30. The Tribunal held that the goods were liable to confiscation under Section 113(i) and (ii) of the Customs Act due to the mis-declaration and ineligible drawback claims.

3. Imposition of Fine and Penalty:
The Tribunal addressed the imposition of fine and penalty on the appellant. It was noted that the goods had already been exported and were not available for confiscation. Therefore, the imposition of a fine of Rs. 2 crore in lieu of confiscation was set aside. Regarding the penalty, the Tribunal found that the appellant had knowingly mis-declared the goods to claim undue drawbacks, rendering them liable to penalty under Section 114(iii) of the Customs Act. However, considering the circumstances, the penalty on the main appellant was reduced from Rs. 50 lakhs to Rs. 20 lakhs. The penalties on the officials of the appellant firm were set aside, as they did not personally gain from the wrongful claims.

4. Conversion of Drawback Shipping Bills to DEPB Shipping Bills:
The appellant requested the conversion of the drawback shipping bills to DEPB shipping bills. The Tribunal noted that this plea had not been raised before the adjudicating authority, nor had an application been made under Section 149 of the Customs Act. The Tribunal directed the appellant to make an application for conversion, which the adjudicating authority should consider in accordance with law and after providing a reasonable opportunity to the appellant.

5. Admission of Additional Evidence:
The appellant sought to introduce additional evidence related to representations made to the Finance Ministry. The Tribunal rejected this application, citing that the notings in the Ministry's file were not relevant to the case pending before the CESTAT. The Tribunal emphasized that the interpretation of the Drawback Schedule should be based on the language used therein, not on the Ministry's notings.

Conclusion:
The Tribunal concluded that the appellant was not eligible for the claimed duty drawback under serial nos. 73.29 and 73.30 of the Drawback Schedule. The exported goods were liable to confiscation, but the fine in lieu of confiscation was set aside due to the goods not being available. The penalty on the main appellant was reduced, and penalties on the co-appellants were set aside. The appellant was directed to apply for the conversion of shipping bills if permissible under the law.