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TMI Blog2011 (1) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication dated 30-1-10 disallowing the DEPB benefit of Rs. 36,31,489/- to the appellant on the allegation that the same was obtained fraudulently by mis-declaration of exported goods and contravened the requirement of Notification No. 34/97-Cus., dated 7-4-1997, the appellant has come in appeal before Tribunal. The adjudication order while denying the claim of the appellant also imposed of Redemption fine of Rs. 60 lakh in lieu of confiscation since goods were exported and not available for confiscation. Ld. Adjudicating Authority also imposed penalty of Rs. 36,31,489/- under Section 114A of the Customs Act, 1962 (hereinafter referred to as the Act ) on the appellant for the above breach of law. While consequences as above arose against the appellants, the proceedings initiated against 13 others for the cause of buying DEPB scrips in question from the appellant were dropped on the ground that there was no allegation in the show cause notice either directly or indirectly about involvement of these noticees in the commitment of offence by the present appellant. 2.1 Opposing the adjudication, learned Advocate appearing on behalf of the appellant submitted that DEPB scrips in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d description as depicted in the drawing. He explained the process of manufacture of the goods in question as under :- The raw material of iron and steels i.e. flats of thickness about 20 mm, width of about 65 mm and 2 square pipe of. The appellant were engaged in the manufacture trading of thickness about 4.5 to 4.7 mm are used. These products are cut to required size/dimensions and holes are drilled in both the parts. The flat is then bent to the required angle and is called tongue. The tongue pipe are welded together, after welding the product is either chrome plated or powder coated or painted etc. as per requirement of the buyer. The impugned goods are affixed on the rear portion of vehicle for coupling any load to be towed. It is used as towing device. The draw bar are specified at serial no. 265/61 of DEPB schedule and in Standard Input Output Norms at S.No. C-1017 of Foreign Trade Policy (in short FTP) and it reads as under :- Sr.No. 265/61 of DEPB Drawbars SION C-1017 of FTP Draw bars The word draw bar and ball mount has not been defined in DEPB Schedule. The DEPB schedule are neither based on HSN nor scientifically interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to draw bar only which is used by automobiles to tow trailers and the drawbar slides into a hitch receiver on the back of an automobile and fastens with a pin and clip. The certificate also stated that drawing No. 20005 related to draw bars which is attached to rear of the tractor and is used for dragging or towing agricultural machinery. The drawing and the certificate forms part of the file at page 106-108. 2.8Learned Counsel further drew our attention to the clarification issued vide letter dated 29-9-2004 (available at page 109 of Appeal folder) by Institute for Auto parts Technology which is a UNDP/UNIDO Assisted with Punjab Government Projects. The communication issued by that Institute on 29-9-04 exhibits that samples tested by that Institute resulted with the conclusion that the goods were draw bars for cars and tractors respectively. It is also indicated by the Institute that similar design, parts with various sizes can be used as draw bars. Similarly reference to page No. 115 in the appeal folder exhibit the conclusion of study of Research and Development Centre for Bicycle and Sewing Machine - a UNDP/UNIDO Assisted Punjab Government project and show that drawing N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of appellant that this appellant being manufacturer of same goods for a long time and invoices having been issued for the draw bar exported, there shall be no confusion by the Revenue to raise fictitious demand against the appellants without finding any change to the nature of goods. Ld. Counsel draw attention to page 180 of the Appeal folder to show some of the sample invoices showing sale of draw bars in the course of export. According to him, the goods that has already been exported leaves no controversy to question the appellant on DEPB claim when DGFT has no question on the matter nor found fault with the appellants in respect of DEPB claim on goods exported. There is also no dispute by Revenue about the process of manufacture of goods and the nature and the description thereof till export. Since no samples were drawn at the time of export the adjudication is baseless. Post export adjudication without any contrary evidence is a futile exercise made to raise demand arbitrarily. 3.To buttress his claim learned Counsel relied on the following decisions : (1) PTC Industries Ltd. v. UOI [2010 (252) E.L.T. 42 (All.)]; (2) Blue Water Foods Exports Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when ball mounts were tractor parts that cannot be called as draw bars for the obvious reason of the use thereof and DEPB benefit is not admissible to ball mounts. Draw bars and ball-mounts are different types of goods and one cannot be substitute to the other. 5. eard both sides and perused the records. 6.1 There was no evidence on record to show that at any time Revenue has collected any sample of the goods exported by the appellants except the sample sent for opinion of DGFT relied upon by the Appellant. Neither before the export, nor in the course of export, nor after the export, goods of any description were collected from the control of the appellants for technical tests by Revenue to prove their contention that the goods were ball mounts but not draw-bars. Records also do not disclose as to whether Revenue has made any inquiry from the end of the importer about the nature and description of the goods exported. Reliance placed by the appellants on various examination reports and opinions of different institution made on the basis of drawings showing the goods were of description of draw-bars remained uncontroverted by Revenue without any technical examination done by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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