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TMI Blog2010 (11) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... f drawback under Section 75 - the appellant cannot be held to have done something or omitted to do something which rendered the goods liable to confiscation under Section 113(ii) of the Act - Decided in the favour of assessee - C/90/2002-Mum - A/368/2010-WZB/C-II/CSTB - Dated:- 2-11-2010 - S/Shri P.G. Chacko, S.K. Gaule, JJ. REPRESENTED BY : None, for the Appellant. Shri S.S. Katiyar, SDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. This appeal filed by one Shri Manoj Mittal is directed against penalty of Rs. 10,00,000/- (Rupees ten lakhs only) imposed on him under Section 114 of the Customs Act by the learned Commissioner of Customs (Adjudication). The appellant is not present, nor represented despite no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid exporters by the Customs department. He submits that the appellant is one of the persons who masterminded the entire episode involving export of goods in the name of non-existent firms for undue benefit of drawback of duty. It is also submitted that both M/s. Neetu Fashions and M/s. Vecario International were found to be non-existent at the address declared by them and, therefore, the goods exported in the name of the two firms were rightly confiscated under Section 113 of the Act, and both the firms and other persons including the appellant were rightly penalized under Section 114 of the Act. In answer to a query from the Bench, the learned SDR submits that the adjudicating authority ought to have invoked clause (i) instead of cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings are contained in para 53 of the impugned order, which reads as under :- M/s. Neetu Fashion never existed on the given address. M/s. Vecario International s present address not available. They had declared the address on the shipping bill, which was evidently incorrect. This is incorrect declaration. This was deliberate and these facts with the fact that remittance not received speaks volume. There is clear violation of Section 113(ii) even if sub-section (ii) not specifically mentioned but section 113 is mentioned; it would not make difference in view of Elphinstine case - 1978 E.L.T. (J399). The goods are liable to confiscation. The person responsible also liable to penalty. As above real person behind these two firm were Shri Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration made under Section 77 . The learned Commissioner dropped the proposal to confiscate the goods under this provision. On the other hand, he invoked clause (ii) of Section 113, which reads thus : any goods entered for exportation under a claim for drawback which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of drawback under Section 75 . Obviously, this provision of law is applicable to goods entered for exportation under drawback claim. In order to constitute an offence under this provisions of law, the export goods should be found not to be corresponding in any material particulars with any information furnished b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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