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TMI Blog2004 (9) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Malik who is to carryout out export business. One container containing the export consignment of PVC soles, after clearance by the Customs officers from the Inland Container Depot, was intercepted on 25-3-99 by the officers of the DRI on receipt of information that the consignment was grossly over-invoiced. The container was brought back in the premises of ICD. The driver of the trailer who was carrying that container to Mumbai, was questioned by the officers. The container was opened and the goods PVC soles were examined. On examination, it was found that 570 cartons of PVC soles of 57,000 pairs approximately valued at Rs. 2.36 crores (FOB value) were being exported by the firm appellant No. 1. The representative samples were drawn from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods deserves to be set aside, on this ground alone. He has place reliance on the ratio of law laid down in G.P. Jaiswal Others v. CC, Lucknow [2004 (167) E.L.T. 206 (T) = 2004 (112) ECR 461]. But we are unable to subscribe to this contention of the learned Counsel being wholly mis-conceived. The Apex Court in the case of Om Prakash Bhatia v. CC, Delhi [2003 (155) E.L.T. 423] has defined the expression prohibited goods attempted to be exported, as appearing in Section 113(d) of the Customs Act. It has been observed by the Court that where the goods attempted to be exported had been over-invoiced, those would fall within the ambit of prohibited goods under Section 113(d) of the Customs Act and confiscation of the same can be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exist at all at the given address. The market enquiry rather revealed that the goods were in fact procured from Agra by the firm appellant No. 1 and the same were made out of re-cycled scrap. The market price was much less than the declared value in the invoices and shipping bills. The learned Counsel has not been able to challenge the findings of the adjudicating authority in this regard on any ground before us. 6. The Counsel has, however, lastly contended that the firm appellant No. 1 acted in a bona fide manner in declaring the price of the goods sought to be exported and there was no intention to defraud the Government. But in our view, this contention of the Counsel is without any merit. It can be rather safely concluded from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is upheld. 7.3. On Shri Vinod Kumar appellant No. 2, penalty of Rs. 50,000/- has been imposed, but we do not find any justification for the imposition of this penalty under Section 114(i) under the Customs Act on him. He is not relation of Shri Sudhir Kumar Malik who is the sole proprietor of the firm (appellant No. l). He did not submit any shipping bills or other related documents for the export of goods with the customs authorities. No vital role has been attributed to him in the attempt made by Shri Sudhir Malik to the export of the goods by over-invoicing the same. It is also not the case of the department that he was to share the booty which Shri Sudhir Malik was to get under the DEPB Scheme, from the Government, if he had suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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