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TMI Blog2005 (4) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... gation under each licence can be properly monitored. When the procedure is not adhered to, it results in serious consequences both to the Revenue and the importer. If the export obligation is not met, the importer is liable to pay customs duty on the goods obtained without payment of duty. Hence the need for proper logging of DEEC books. When goods are exported under a particular shipping bill it should be logged only once in the DEEC book. If it is logged again it would mean showing the same exports twice. This is not allowed. The DRI during investigation found number of instances of double logging and also the investigation revealed that on account of double logging and also due to non-fulfilment of export obligation, there was huge revenue loss to the tune of Rs. 1,44,35,162/-. In respect of five licences, the export obligation was short by 13,268 pagers. Hence Revenue proceeded against the appellants. The appellants submitted before the adjudicating authority that there was no mala fide and only due to inadvertence there was double logging. It was further submitted that in all they had obtained 30 advance licences and if the entire issue is viewed holistically, they had exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against appellants claim of 11460 is contrary to facts. He has erred in not considering the export of 1500 pagers under its very licence vide shipping bill 48282 dated 22-12-1997 only on the ground that photocopy of the same was produced. Such finding is contrary to CBEC instructions. Instead of summarily rejecting the photocopy of the said shipping bill, the adjudicating authority should have given an opportunity to the appellants to obtain a certified copy of the shipping bill in question as provided under Levy of Fees (Customs Documents) Regulation . This amounts to denial of principles of natural justice. The appellant had submitted original copy of Bank Certificate of Export Realisation (BCR) in the prescribed form to the adjudicating authority certifying realisation of 87,000 USD as export proceeds against this very shipping bill 48282 dated 22-12-97. When there is such irrefutable evidence of goods having been exported under the above shipping bills and export proceeds realised, the adjudicating authority's rejection of this Shipping Bill as a proof of export of 15000 pagers under licence in question on such flimsy grounds is highly arbitrary and capricious. (iv) Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Licence Nos. 7001272, 7001271, (should be 1272) 7000330 and accordingly adjusts shortfall of 9923 and 75 (9998) pagers against licence No. 7001272 and 7000330 respectively. Yet he holds that there is a shortfall to the extent of 3270 pagers without taking into account the export of balance 2098 pagers by his own admission (12096-9998) whereas if it is accepted (as the adjudicating authority has infact done) that total of 2098 pagers after adjusting shortfall against licence Nos. 7001272 and 7000330 have infact been exported under Advance Licensing scheme and export proceeds realised, it is fallacious to still allege at the same time that proportionate imported components corresponding to 2098 pagers have not been utilised for fulfilment of export obligation and demand duty thereon on this ground. Such contradictory finding is perverse and hence bad in law. (viii) Without prejudice to the above grounds, adopting highest unit price of determining value and duty instead of adopting the average unit value is also arbitrary and without packing of law. (ix) Interest of Rs. 1,11,930.96 on a quantity of 1150 PCB unpopulated allegedly not utilised when this quantity was not even impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to verify the particulars. In any case, even if he had been negligent in his duties, the Customs have no jurisdiction to impose penalty on him under Section 112(a) for any violation of Exim policy and FTDRA 1992. The appropriate authority would be JDGFT and not the Customs. The appellant had exercised due care, diligence and acted in bona fide manner while giving the certificate. There has been no mens rea on the part of the appellants. Moreover, the Company had exported more than its export obligation and hence no motive could be attributed to the appellant in giving the certificate. 7.Shri S. Raghu appeared on behalf of Shri R. Srinivasan of M/s. BAX Global India Ltd. The learned advocate stated that the appellant Shri Srinivasan was working as the Dy. Manager in M/s. BAX Global India Ltd., Bangalore. He used to look after work relating to exports and imports. During his tenure he handled the work of M/s. Motorola India Ltd. M/s. Motorola India Ltd., consequent on their closing of pager unit wanted the appellant-firm to consolidate the complete export obligation particulars against several advance licences. It was submitted that the job of logging of DEEC book was attended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the exporters. In any case, we find that there are several instances where in respect of exports made no logging has been done. The details of 16 shipping bills have been submitted by the appellants to the adjudicating authority. The adjudicating authority in fact has taken those particulars into account and has given a finding that in respect of the following two licences the export obligation has been completed. (1) 070001272 (2) 07000330 However, according to him there is a shortfall in respect of the following licences as indicated below. Licence No Shortfall (1) 07000701 1476 (2) 07002576 1199 (3) 07000735 575 Total 3270 10The total unlogged exports in respect of 16 shipping bills is 13,596. This is not disputed. However, the total shortfall in respect of the licence 070001271 and 07000735 originally according to the revenue was 9998 (9923+75). Once this short fall of 9998 has been adjusted against the number of pagers exported under 16 shipping bills (13,596), the balance quantity which has not been utilised or adjusted is 13596-9998=3598. In any case acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants had more than fulfilled the export obligation by 328 (3598-3270). The appellant contends that if the adjudicating authority had used his discretionary power under Section 149 by suitably amending the licence numbers in the shipping bills, the matter would be solved. We find much force in the submission of the appellants. Averse as we are to pontificating, we feel that the Adjudicating authority could have used his discretionary powers under Section 149 to amend the Shipping Bills for adjusting the excess exports for shortfall in respect of the three advance licences. Even though there have been lapses in properly accounting for the exports made under the DEEC scheme there is no evidence that the appellant had diverted the imported goods or not exported the finished products. The entire case is made on the basis of irregular logging in the DEEC books. There is no evidence that the appellant had not realised the foreign exchange. In our view there is substantial compliance of DEEC scheme by the appellant. Therefore the duty demand is not sustainable. Since duty demand is not sustainable, and there is no mala fide, no penalty can be levied on the appellant-company. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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