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TMI Blog2010 (12) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-WZB/C-IV/SMB - Dated:- 14-12-2010 - Mr. P.G. Chacko, Shri S.S. Sekhon, Advocate with Shri R.V. Shetty, Advocate, for appellant Shri B.P. Pereira, Authorised Representative (JDR), for respondent This appeal has arisen from time to time for final hearing. As it appears from the records, the Bench wanted to know whether the subject-goods were cleared for export under bond. The DR was required to produce the bond, if any, for which purpose the matter stood adjourned from time to time. Today, the learned JDR submits that all the queries in this regard have gone unheeded by the Commissionerate concerned. In this connection, he has shown me copies of the letters issued by him to the Commissioner of Customs (Export), JNCH, Nhava Sheva. These letters indicate that the Commissioner was requested to confirm whether any bond or undertaking had been executed by the appellant before the goods were exported. Apparently, the Commissioner of Customs (Export) has not so far cared to answer the crucial queries put by the JDR. In this scenario, adverse inference will be raised against the department. Accordingly, I would like to proceed on the premise that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the learned Commissioner of Customs (Export) passed the following order:- ORDER (i) I order confiscation of goods exported vide 3 S/Bills viz. S/Bill No.4658444/09.10.2006, 4714924/01.11.2006 and 4635120/29.09.2006 totally valued at Rs.41,79,862.70 under the provisions of Section 113(h) (i) of the Customs Act, 1962. I allow the exporter M/s. General Export Enterprises to redeem the goods on payment of redemption fine of Rs.8,00,000/- (Rupees Eight Lakhs Only) under section 125 of the Customs Act, 1962. (ii) I deny the benefits to the exporter under Duty Free Import Authorization Scheme pertaining to the said three S/Bills. (iii) I impose penalty of Rs.4,00,000/- (Rupees Four Lakhs Only) on exporter M/s. General Export Enterprises u/s. 114(iii) of the Customs Act, 1962. The present appeal is directed against the above order of the Commissioner. 3. The learned counsel for the appellant has, apart from reiterating the grounds of this appeal and the further submission dated 9.11.2010, advanced certain legal arguments. It is submitted that, as the goods were not available for confiscation, no fine could have been validly imposed by the adjudicating authority. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that the goods are liable to confiscation under the Customs Act. In the absence of the goods, there can be no reason to confiscate either and, therefore, goods which are not available for seizure cannot be held liable to confiscation and, for that matter, the importer or exporter, as the case may be, cannot be held to have indulged in any commission or omission rendering the goods liable to confiscation. The learned JDR has opposed these arguments. It is submitted that, if these arguments of the counsel are accepted, the provisions of Section 113 would become deadletters. 5. The learned counsel has also relied on case law. In the first instance, he has claimed support from Haniff Shabbir Brothers vs. CC,Madras1997 (96) ELT 27 (Mad.). In the cited case, it was held that, in the absence of any order of confiscation of goods under import, there could not be any imposition of penalty under Section 112 of the Customs Act. In that case, though the show-cause notice proposed confiscation in addition to levy of penalty, no such order of confiscation was made at all and only penalty simpliciter was imposed. Apparently, the order of adjudication, in that case, was challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs and are also liable to confiscation. The appellant has no case that they had no obligation to declare GSM in the shipping bills. As a matter of fact, the learned counsel has fairly shown me a copy of the relevant public notice issued by the Government of India, which clarified the relevant provisions of the EXIM Policy. This public notice was issued on 27.9.2007 clarifying the Policy of 2004-09. The exports in question were made in 2006. The clarificatory public notice is liable to be given retrospective effect. Therefore, it has to be held that the appellant was liable to declare GSM of the fabrics under export under the DFIA Scheme. It is significant to note that the appellant has not argued to the contra. The Chemical Examiners report furnished GSM values below the declared GSM values. The report has not been contested by the appellant. Before the adjudicating authority, they raised a feeble contention that there was bound to be 10% error on the part of the Chemical Examiner, but this contention was rightly rejected by the Commissioner. Had it been the case of the appellant that the Chemical Examiners report was unacceptable, they could have asked for retes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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