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TMI Blog2003 (9) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 113(d) and (i) of the Customs Act, 1962 and since the goods had been already allowed to be exported and were not available for confiscation thus the appellants, as exporter, were liable for a penalty of Rs. 9 lakhs under Section 114(i) of the Customs Act, 1962. Hence this appeal. 2. The appellants submit - (a) They are engaged in the manufacture of Accelerated Grahic Processor (AGP card), falling under Heading 8.73 as parts and accessories of automatic data processing machines. The AGP card is fixed inside the computer for providing connection between computer and Monitor (visual display unit). This AGP card is nothing but populated printed circuit board i.e. printed circuit board on which components such as transi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reveal that when the exporter, exports the goods under cover of DEPB Shipping Bills. At the time of export, the Customs Department will examine the goods vis-a-vis the description given on the shipping bill to ensure that the goods described on the shipping bill alone are actually exported. The Customs Department would also verify the FOB value declared by the exporter with regard to Present Market Value (PMV), and hand over the Export Promotion Copy of Shipping Bill to the Exporter. (b) The exporter after realising the export sale proceeds, will apply to the prescribed authority in the office of the Director General Foreign Trade Ministry of Commerce (herein after refer to a DGFT) in the form prescribed in Appendix 11C of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en re-examined. It has been decided that the role of customs authorities should be confined to verification of correctness of exporter s declaration regarding description, quantity and FOB value of the export product. It will be for the licensing authorities granting credit to ensure that credit is permitted by them at the correct rate as notified by the DGFT. (d) The CEGAT in the case of M.K. Fisheries v. Commissioner of Customs - 2002 (150) E.L.T. 998 has held in Para 5 as under : ............Therefore we find that while the Customs cannot sit in judgment over any decision regarding quantum of DEPB to be credited in the passbook, yet in all fairness justice require that if the Customs find any variation between the descripti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 321 it could be held that both kinds of Circuit Boards i.e. plain or unpopulated or printed and populated could be covered as PC Boards. The Commissioner has come to a finding In fact the items imported was fully assembled item to be used as an add on card for computer is a finding arrived without any material or expert agencies reports on record. Para 1 of the impugned order reads as - ..........Examination of the goods by the customs officers showed that goods were misdeclared. The item being exported was not a PC board as claimed, but was a Populated Printed Circuit Board containing various components and was infact a fully assembled component of computer system. The goods were infact thus found to be Populated PCB. Mercury m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade (Development and Regulation) Act, 1992 the goods should be deemed to render the export goods, prohibited goods and therefore liable for confiscation under Section 113(d) and 113(i) of the Customs Act, 1962 on consideration is found to be not correct interpretation of law. Even if the alleged misdeclaration finding is to be upheld. It is found that Foreign Trade (Regulation) Rules, 1993 issued vide Ministry of Commerce Notification No. GBR 791(E), dated 30-12-1993 have been issued under the powers confirmed by Section 19 of the Foreign Trade (Development and Regulation) Act, 1992 by the Central Government and not under the powers which would be exercised by the Central Govt. to issue an order under Section 3(2) of the Foreign Trade (D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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