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TMI Blog1996 (7) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- on Mr. Shreeram Chaudhary, besides penalty of Rs. 10,000/- on Kamalkumar Agarwal and Rs. 5,000/- on Mr. T. Thomas. The last two persons however do not seem to have filed any appeal against the said order. 2. The Silkon Silk Mills (Exports) Ltd. filed Five Shipping Bills for exports of the Polyester Dyed Fabrics-Textile pieces goods. On so information received, the consignments lying in the Docks awaiting shipment, were checked and weighed 100% and as a result thereof, it was ascertained that the weight mentioned in the Shipping Bills was in all, excess by 4960.361 kgs. than the actual weight and as such there was a difference of 53% in the weight declared and actual weighment made. It was also found that in the Shipping Bills No. 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Section 113(i) of the Act, the said provision is not invoked in the Show Cause Notice and there also mis-declaration ought to be in relation to dutiable or prohibited goods for lodging a claim under drawback. Whereas here, that is not the case. He has pleaded that as such, there is no justifiable ground to order confiscation under Section 113 of the Act and as such, penal provisions of Section 114 of the Act also cannot be invoked. Challenging the acceptability of the statements recorded, pleading them to be not admissible as obtained under pressure, the ld. Advocate has further pleaded that there is absolutely no mis-declaration in any other aspect and the only variation is in relation to the weight and has referred to the decision of Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SDR has submitted that vide Rule 11 of the Foreign Trade (Regulation) Rules, 1993 (in short the Rules), every export consignment has to be covered by a Shipping Bill which shall contain value, quality and description of the goods and should bear the Certificate that the declaration so made is correct and one in terms of export contract, and vide sub-rule (2) of Rule 14, no person should employ any corrupt or fraudulent practice for the purpose of exporting any goods. It is his submission, the mis-declaration that makes the goods prohibited for export, as there is a patent contravention and the same would therefore attract the provisions of Section 113(d) of the Act. Pleading that the declaration as to the correct weight is one of the essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of exportation, subjected to any prohibition or restriction and that restriction if any, imposed disentitled the exporter from exporting the goods. 8. The ld. SDR has however taken pains to plead that the provisions contained in Foreign Trade Act and Foreign Trade Rules, when read conjointly, would tantamount to laying down prohibition against export and thus attract the provisions of Section 113(d) of the Act. There, however, does exist a distinction between prohibition or restriction, regularisation and compliance with the procedural formalities. 9. The ld. DR has referred to Section 3(3) of the Foreign Trade Act, but has not shown, nor does any allegation exists, that an order is issued vide Section 3(2) of the Act proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inor one. Considering accordingly, though penalty under Section 114 of the Act cannot be imposed, under the given set of circumstances, with contravention of the provisions of Section 50 of the Customs Act, 1962 having been admitted, the penalty is being imposed under Section 117 of the Act. 14. The maximum penalty provided for under Section 117 of the Act is Rs. 1,000/- and hence the penalty of Rs. 1,000/- is imposed on the appellant firm. When the penalty is imposed on the firm, separate penalty on the Director does not appear necessary. 15. In the result, while Appeal No. C/68/96 is allowed, Appeal No. C/67/96 is partly allowed and while setting aside the order of confiscation under Section 113(d) (i) of the Act and also the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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