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TMI Blog2009 (6) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus.Adjn; dated 26-3-2009. 2. The facts in brief are the appellant company in Appeal No. 347/2009 (M/s Shree Kuberappa Sons) filed 18 shipping bills on 1-4-2007 declaring the description of the export goods as "Natural Silk Mixed Sarees" under Duty Free Imports Authorisation (DFIA) Scheme and 5 Shipping bills, declaring the description as "Readymade Garments 100% Cotton Men's Shirts" under Drawback Scheme. These consignments were exported through Cochin Port. The lower authorities intercepted three containers covering 15 shipping bills at Cochin and three containers were seized on 26-4-2007. Two containers, which had already sailed to Dubai from Cochin were also recalled and seized on 23-8-2007 and 14-9- 2007. The lower authorities conducted investigations and recorded statements of various people. On recording such statements, the lower authorities felt that there was an overvaluation of the consignments and coming to such a conclusion, show cause notice dated 16-1-2008 was issued to the appellant and its proprietor proposing various actions mainly as under:- (i) the goods, contained in the 5 containers viz Container Nos. GSTU 515303-1, TR 141439-5, PCIIJ 324616-9, TRIU 374 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cochin port and Mahazars dated 23-8-07 and 14-9-07 drawn a l Bangalore, totally valued at Rs.28 should not be confiscated under the provisions Sections 113(d), 113 and 113(i) of the Customs Act, 1962; (ix) the "Readymade Garments made of cotton, polyester, nylon viscose fabrics and their blend" and "100% polyester saree" actually found in the said 5 containers, provisionally released but not taken delivery by the exporter, should not be re-assessed under Section 17 of the Customs Act, 1962 for their actual description, value, quantity etc in the 18 Shipping Bills outside the purview of DFIA Scheme and without giving the benefit under DFIA Scheme; (x) the declared (higher) FOB value of Es. 29,48,517/- for the "Ready made Garments made of cotton, polyester, nylon viscose fabrics and their blend" covered under 5 shipping bills filed under Draw back Scheme mentioned in Annexure fl to this notice should not be rejected and their market value should not be re-determined at Rs.18,76,800/-; (xi) the "Readymade Garments made of cotton, polyester, nylon viscose fabrics and their blend' covered under the 5 shipping bills filed under Drawback scheme, now valued at Rs.18,76,800/- , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in the guise of the description "Natural Silk Mixed Sarees". I therefore hold them as not lobe counted for eligibility under the OFIA Scheme or any other export benefits to be claimed in future against the fraudulent/mis-declared exports made/attempted to be made by the Noticee. 3. 1 reject the FOB value of Its. 3,63,06494/- for the declared description of Natural Silk mixed Sarees" and re-determine the value at Its. 28,29,390/- for the goods covered under the IS Shipping Bills filed under DFIA Scheme as mentioned in Annexure-B to the Show Cause Notice considering the goods as "Readymade garments made of cotton, Polyester. Nylon and Vis cose fabrics and their blends" and '100% Polyester Sarees". 4. I also deny the benefit of duty free imports under OFIA Scheme vide Notification No. 40/2006-Cus., dated 1-5-2006 that may be availed in future agatusi the fraudulent exports carried out/sought to be carried out by the Noticee. 5. I confiscate the goods found to be "Readymade garments made of Cot ton, Polyester, Nylon and Viscose fabrics and their blends" and "100% Polyester Sarees" in the said 5 containers and declared to be covered under the 18 Shipping Bills filed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be appropriated. 12. I also impose a penalty of Its. 70,00,000/- (Rupees Seventy lakhs only) under Section 114(iti) of the Customs Act, 1962 on M/s. Shri Kuberappa Sons for their acts of omission and commission which have rendered the goods "Readymade garments made of cotton, Polyester, Nylon and Viscose fabrics and their blends" and 100% Polyester Sarees' covered under the 5 containers mentioned in Annexure-B to the Notice. 13. 1 also impose a penalty of Its. 15,00000/- (Rupees Fifteen lakhs only) on Shri Subhash Mulound Kuberappa under Section 114(iii) of the Customs Act 1962 for his acts of omission and commission which have rendered the goods "Readyniade garments made of cotton, Polyester, Nylon and Viscose fabrics and their blends and "100% Polyester Sarees' covered under the 5 containers mentioned in Annexure-B to the Notice. 14. I also impose a penalty of Its. 15,00,000/- (Rupees Fifteen takhs only) on Shri Baloo Panchariya/Balaji S/o Shri Rain Bilas Panchariya under Section 114(iii) of the Customs Act, 1962 for his acts of omission and Commis sion which have cendered the goods "Readymade garments made of cot ton, Polyester, Nylon and Viscose fabrics and their b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him, the Appellant was arrested from 20-4-07 to 21-5-07 and again under COFEI'OSA detention from 2-10 07 to 17-7-08, thus totally he has spent 10½ months in Jail custody. Further his entire export consignments are seized and lying in the department's custody for the past 2 years. The Appellant submits that extent of fine and penalty imposed by the Id. Commissioner is very harsh and therefore considering that the Appellant has suffered extensively because of the case filed by DPI and remained in Jail. The Appellant respectful prays this Hon'ble Tribunal to re duce considerably fine and penalty as he has considerably suffered mentally and financially. (G) The Appellant respectfully submits that even the Id. Commissioner himself has redemption fine of 7% for release sales proceeds and wheteas imposed in respect of readymade garments covered under 18 shipping bills, the redemption fine imposed 53% and in the case of export goods covered under 5 shipping bills under drawback schemes it is 48%, thus being very harsh and excessive. (H) The Id. Commissioner has further erred in imposing penalty on the Appellant in his individual capacity and also on the firm. It is well settled that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal memorandum there is no grounds taken as regards the correctness of the test reports which have been relied upon by the Adjudicating Authority. The intention and objective of Duty Free Imports Au thorisation (DFIA) scheme is to allow duty free import of the inputs which are used in the manufacture of export product, giving normal allowance for wastage, which are consumed or utilized in the course of their use to obtain the export product. It can be seen from the enormous evidences collected and relied upon by the Adjudicating Authority that the inputs sought to be imported under DFLA for the goods exported could not have been utilized by the appellant as they have mis-declared the goods sought to be exported. We do not find any merits in the appeals filed by the appellants. The Adjudicating Authority's order is a detailed one and has dealt on merits of the case. 6.1 As regards the lenience sought to be claimed by the appellant, we find that there is a strong force in the contentions raised by the learned counsel. It is undisputed that appellant was under judicial custody from 20-4-2007 to 21-5-2007 after being arrested and produced, by the DRI. Subsequent to his release ..... X X X X Extracts X X X X X X X X Extracts X X X X
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