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TMI Blog2010 (1) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... , for the Respondent. [Judgment per : V.C. Daga, J.]. - The Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT for short) has referred following three questions of law for the opinion of this Court vide its order dated 28th September, 2000 [2000 (122) E.L.T. 765 (Tribunal)]. (1) Whether shortage in weight will attract the provision of clause 3(3) of Export Trade Control Order No. 1/88 ETC? when as per this clause if in any case it is found that the value, sort, specification, quality and description of the goods to be exported are not in conformity with the declaration of the exporter in this respect or quality and specification of such goods are not in accordance with the terms of export Contract, the export of such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s goods became prohibited one under clause 3(3) of the Export Trade Control Order (ETC) read with paragraph 4 of the Foreign Trade (Development and Regulation) Act 1992. The Commissioner of Customs ordered confiscation of the said goods under Section 113(d) of the Customs Act, 1962 and imposed penalty under Section 114(i) of the Customs Act and redemption fine of Rs. 10 lakhs in lieu of confiscation. 5. Aggrieved by the above order, appeals were preferred before the CEGAT contending that clause 3(3) of the above ETC order does not bring within its sweep shortage in weight as such the export of goods will not be prohibited one even if the shortage in weight is noticed while exporting goods. Such goods would not be liable to be confiscated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of India, New Delhi styled as Exports(Control) Order,1988 and Paragraph 3 thereof in particular which reads as under : 3. Restrictions on export of certain goods : (1) Save as otherwise provided in this Order no person shall export any goods of the description specified in Schedule I, except under and in accordance with a licence granted by the Central Government or by an officer specified in Schedule II. (2) Notwithstanding anything contained in sub-clause (1) goods specified in Schedule III may be exported on fulfilment of the terms and conditions specified therein. (3) If in any case, it is found, that the value, sort, specification, quality and description of the goods to be exported are not in conformity with the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which do not correspond in any material particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof; (ii) any goods entered for exportation under claim for drawback which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of drawback under Section 75; He submits that the text from the pre amended and amended provision if considered then even if there is difference in weight, the goods cannot become prohibited goods because this aspect is sought to be covered under amended provision which was absent in unamended section. In support of this submission Mr. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a claim for prohibited goods or goods entered for exportation under a claim for drawback which do not correspond to any material particulars with the entry made under this Act or in this case of baggage with the declaration made under Section 77 in respect thereof and Section 113(ii) refers to any goods entered for exportation under claim for drawback which do not correspond in any material particular with any information furnished by the exporter under this Act in relation to the fixation of rate of drawback under Section 75. Thus, when the words do not correspond in any material particular are not present in clause 3(3) of Export Trade (Control) Order it cannot be said that when there is a difference in weight clause 3(3) of Export Trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 113(i) cannot be applied retrospectively even though in the present case Section 113(d) is invoked. However, the Tribunal has erroneously read the words which do not correspond in any material particulars in clause 3(3) of Export Trade (Control) Order under which is not permissible when such words are not incorporated while enacting clause 3(3) of Export Trade (Control) Order. 19. The Apex Court had an occasion to consider more or less similar question in the matter of RIB Tapes and another v. Union of India reported in 1986 (26) E.L.T. 193 (S.C.). Prior to 1973 Section 111(m) of Customs Act, 1962 read as under : any dutiable or prohibited goods which do not correspond in material particular with the entry made under this Act..... ..... X X X X Extracts X X X X X X X X Extracts X X X X
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