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TMI Blog2005 (11) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... FOB value of Rs. 2,14,84,638/- were liable for confiscation under Section 113 (i) of the Customs Act and imposing fine of Rs. 10 lacs on the exporters in lieu of confiscation and further declaring that the drawback of Rs. 26,23,075/- was not admissible under Section 76(1)(b) of the Customs Act and directing recovery thereof from the exporter under Rule 16 and 16A of the Customs and Central Excise Duties Drawback Rules, 1995 with interest under Section 75A(2) of the Act and further imposing a penalty of Rs. 5 lacs on M/s. Varuna Overseas under Section 114 of the Act and a penalty of Rs. 2.5 lacs on Satyender Singh, Proprietor of that concern. 2. Satyender Singh was the proprietor of M/s. Varuna Overseas. The shipping bills of Varuna Overse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Drawback Rules, 1995, Rule 11 and 14 of Foreign Trade (Regulation) Rules, 1993 and the appellant was called upon to show cause why the goods exported should not be liable to confiscation and the duty drawback availed should not be denied and as to why the amount should not be recovered under Rule 16 and 16A of the Drawback Rules with interest under Section 75A(2) of the said Act. 3. The Commissioner on the basis of the material on record came to a finding that the appellant, in collusion with others, had exported cheap quality export surplus garments which were procured at a local market price of Rs. 14/- per piece and that these were grossly over invoiced at Rs. 347.27 per piece with a view to claim duty drawback. It was held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibited goods and cannot be invoked where the goods were not prohibited for export and no export duty was leviable on the goods. (b) The decision of the Tribunal in Badri Prasad and Sons Pvt. Ltd. v. Collector of Customs, Delhi reported in 1995 (80) E.L.T. 624 was cited for the proposition that when the goods were not prohibited for export, imposition of penalty under Section 114 was not justified. Shilpi Exports v. Collector of Customs, Calcutta reported in 1996 (83) E.L.T. 302 (T) was cited for the same proposition. 5. The learned authorised representative for the department supported the reasoning and findings of the impugned order and contended that the Supreme Court while construing the provisions of Section 113(d) has held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submission, he placed reliance on the decision of the Calcutta High Court in Euresian Equipment and Chemicals Ltd. and others reported in 1980 (6) E.L.T. 38 (Cal.). 6. The record reveals that the appellant who was the proprietor of Varuna Overseas had, in collusion with the others, exported cheap quality garments which were procured @ Rs. 14/- per piece, as admitted by Manish Yadav, and claimed drawback of Rs. 42.5 per piece which was not admissible to the exporter under Section 76(1)(b) of the Act. Since the drawback was not admissible it was recoverable under Rules 16, and 16A of the Duties of Drawback Rules 1995. 6.1 As regards the contention that the goods were not seized and they were already exported, and therefore, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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