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TMI Blog2009 (4) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... ty confiscated the exported goods valued at Rs. 2,86,01,385/- under Section 113(i) of the Customs Act, 1962. He also confirmed the demand for payment of an amount of Rs. 8,58,042/-. Penalties were imposed on the company and its directors. The appellants were aggrieved over the above order. Therefore, they approached the Commissioner (Appeals). The Commissioner (Appeals) passed the impugned order upholding the demand and therefore, the appellants have come before this Tribunal for relief. Held that- the DGFT had not taken any adverse action against the appellants on the basis of the DRI report. In these circumstances, the impugned order, demanding the differential amount, interest and imposing penalties is not sustainable. As the issue is sq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) passed the impugned order upholding the demand and therefore, the appellants have come before this Tribunal for relief. 4. The following points were urged by the learned Advocate:- (i) The appellant submits that as per the decision in Adani Exports v. AC of Customs, 2006 (199) E.L.T. 613 (T), the impugned order is wrong in law, since the customs authorities have no jurisdiction to question the DEPB entitlement, and the power to determine the same is with the DGFT only and once the DGFT decides the credit the customs cannot demand duty on the ground of mis-declaration. The customs can initiate action only if the DGFT modifies the credit, which has not happened in the present case. Nor has it been shown by the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items are absent in the exported goods. The order is wrong and liable to be set aside. (iii) The Tribunal has in the following cases related to export of marine products under DEPB claim decided that the customs have no jurisdiction to demand duty, and the said decisions are applicable to the facts of the present case also. (a) Alphonse Joseph v. CCE - 2006 (204) E.L.T. 487 (T) (b) Baby Marine Exports v. CCE - 2007 (209) E.L.T. 83 (T) (c) Adani Exports v. Asst. Commissioner - 2006 (199) E.L.T. 613 (T) (d) Baby Marine Exports v. Commissioner - 2007 (210) E.L.T. 259 (T). (e) M.K. Fisheries v. Commissioner - 2002 (150) E.L.T. 998 (T) The impugned order is contrary to the above rulings and deserves to be set aside. (iv) The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apart from the Tribunal decisions and the impugned order is unsustainable." 5. The learned SDR reiterated the impugned order. 6. We have gone through the records of the case carefully. The allegation against the appellants is that they have not used chemicals and preservatives in the export product but claimed higher DEPB credits. The appellants urge that they procured the export product as merchant exporter from fishermen, who use preservative/chemicals at the time of catching fish or at the landing centre. It was informed that on the basis of the report from DRI, the DGFT authorities also issued Show Cause Notice but the same had not been adjudicated and no adverse action has been taken. The DEPB licences granted had also not been can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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