9911796707
TMI Blog2004 (1) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of M/s. Jaycee Exports. During investigation, statements of various persons were recorded and a representative sample of the detained/seized goods were also sent for ascertaining present market value from M/s. Pointec Pens Pvt. Ltd., Bangalore. On investigation, it appeared that M/s. Jaycee Export had filed shipping bills No. 22184-22185 both dated 11-6-99 at ICD, Bangalore for export of non-metallic writing instruments (ball pens) valued at Rs. 56,65,800/- under DEPB scheme through M/s. International Cargo Agents, Customs Agents. On enquiry being initiated by Customs officers, ICD, Bangalore, regarding overvaluation of the consignment, these shipping bills were got cancelled by M/s. Jaycee Exports and the same consignment was then presented at Air Cargo Complex, Bangalore under shipping bill No. 16048 16050, dated 26-7-99 showing FOB value of Rs. 56,75,800/- under DEPB scheme. In the shipping bill, they made declaration that advance payment has been received in respect of the said export consignment. Although on investigation it was found that M/s. Jaycee Export could not correlate the inward remittances to the export values shown in the shipping bills. They also coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mention the sub-section of Section 113 of Customs Act. The ld. Commissioner has traversed beyond the allegation in the show cause notice while passing the impugned order and the appellants were not afforded an opportunity to represent the violations of the Foreign Exchange Regulation Act, 1973. The Tribunal has held in catena of judgments that adjudicating authority cannot go beyond the allegation made in the show cause notice. He relied on the decision of Tribunal in the case of (1) CCE v. Towers and Structurals Pvt. Ltd. reported in [1998 (102) E.L.T. 687 (T)], (2) Hospita India Ltd. v. CC, New Delhi [1999 (106) E.L.T. 234 (T) = 1999 (30) RLT 15 (CEGAT)], (3) Modi Cement Ltd. v. CCE, Raipur [1998 (99) E.L.T. 378], (4) Brindavan Agro Inds. Ltd. v. CCE, Kanpur [1998 (98) E.L.T. 284 (T)], (5) Modern Syntex (I) Ltd. v. CCE, Jaipur [1996 (84) E.L.T. 209 (T)]. In the light of these decisions, he submitted that the impugned order passed by the Commissioner is liable to be set aside. 6. Shri B.V. Kumar, learned Advocate, appearing for M/s. International Cargo Agents, pleaded that the Commissioner has already restored the licence of M/s. International Cargo Agents which was suspended c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the export values shown in the shipping bills; had declared the export value which was not commensurate with the actual value of goods attempted to be exported and had overvalued the export goods with an intention to avail of DEPB credit to the extent of 21% of the FOB value. Thus, the goods attempted to be exported are liable for confiscation under section 113(d) of the Customs Act, 1962. Non-mention of sub-section of Section 113 of Customs Act, does not vitiate the SCN when the offence committed has been specifically mentioned. Regarding contravention of M/s. International Cargo Agents, she stated that the Show Cause Notice clearly mentions that the provisions of Rule 14 and 19 of Customs House Agents Licencing Regulations, 1984 read with the relevant provisions of the Customs Act, 1962 were contravened by them. 8. She stated that the Commissioner, in his order, mentioned that Shri Jagadish Lakhani has failed to produce the documents pertaining to export order placed by the overseas buyer. In addition, he has mis-represented the facts and mis-declared the same in the shipping bill with an intention to avail undue benefit of the DEPB scheme. In view of the fact that, he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered the submissions made by both sides. We find that the main objection on the side of the appellants is that the Show Cause Notice had not given the sub-section of Section 113 of the Customs Act which have been violated by them and the Commissioner has invoked the provisions of Section 50(2) of the Customs Act and Section 18(1)(a) of FERA, 1973 which were not disclosed in the Show Cause Notice. We find that the Show Cause Notice clearly mentions that the appellants M/s. Jaycee Exports have filed two shipping Bills No. 16048 and 16050 both dated 26-7-1999 at ACC, Bangalore for export of non-metallic writing instruments under the DEPB Scheme by declaring an FOB value of Rs. 56,73,885/-. The export consignment was over-valued in order to seek undue benefit under DEPB scheme. M/s. Jaycee Exports were not able to correlate the inward remittance of the export values shown in the shipping Bills. They had declared the export value which was not commensurate with the actual value of goods, attempted to be exported and had over-valued the export goods with an intention to avail of DEPB credit to the extent of 21% of the FOB value. Thus, the goods attempted to be exported appeared to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration wrongly given in the shipping bill by overvaluing the goods amounts to violation of Section 113(d) of the Customs Act and the goods are liable for confiscation and the exporter is liable for penalty under Section 114 of the Customs Act. The various case laws relied upon by the appellant M/s. Jaycee Exports are not applicable in the present case but the ratio of Supreme Court s decision in case of Om Prakash Bhatia v. CC, Delhi reported in 2003 (155) E.L.T. 423 (S.C.) is squarely applicable in the facts and circumstances of this case. Therefore, we do not find any infirmity in the order of the Commissioner or in the show cause notice by which the appellants were restricted to place their defence before the adjudicating authority. The offences were clearly mentioned in the show cause notice and therefore, the Commissioner had correctly decided that the appellants have rendered the goods liable for confiscation under Section 113(d) of the Customs Act. Once the goods are liable for confiscation under Section 113 of the Customs Act, the appellants M/s. Jaycee Exports were liable for penalty under Section 114(1) of the Customs Act. Therefore, the penalty has been correctly im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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