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TMI Blog2013 (8) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... that references should have been made for cancellation of that DEPB scrips – The assesse-company have asked for telegraphic release advice (TRA) only in respect of two DEPB scrips though they were issued totally five DEPB scsrips - The Commissioner had denied the request for TRA - The action to deny TRA without taking action to get the DEPB scrips cancelled had no meaning - There was no order on other DEPB scrips - it was clear that the validity of DEPB scrips was only one year and the grant of TRA had no significance as of now unless the DEPB scrips were revalidated by the DGFT authorities - In the event of any request for revalidation of DEPB scrips it would be necessary for the customs authorities to take it up for with the DGFT authorities against any such renewal if so advised. Redemption Fine u/s 125 - Penalty u/s 114 – Held that:- Redemption fine imposed on goods which were already exported and not available for confiscation were set aside - Penalty was reduced - this was a case of export of sub-standard items and overvaluation of exports - the charge of mis-declaration and overvaluation, the Commissioner had chosen to impose excessive amounts as redemption fine, obvious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 113(i) of Customs Act, 1962. Since the exported goods are not available for confiscation, I impose a fine of. Rs. 11,89,50,027.00 (Rupees Eleven Crore Eighty Nine Lacs Fifty Thousand Twenty Seven only) on M/s. Sukumar Chemicals (P) Ltd., 82/1, Railway Road, Meerut under Section 125 of the Customs Act, 1962. (vi) I confiscate the goods i.e. old used garments Rs. 12,58,54,409.00 (Rupees Twelve Crore Fifty Eight Lacs Fifty Four Thousand Four Hundred Nine only) which had been fraudulently exported by M/s. Agemo Leather Components (P) Ltd., Moradabad during the period 6/98 to 8/98 on the strength of 30 shipping bills under the provisions of Section 113(i) of Customs Act, 1962. Since the exported goods are not available for confiscation, I impose a fine of Rs. 12,58,54,409.00 (Rupees Twelve Crore Fifty Eight Lacs Fifty Four Thousand Four Hundred Nine only) on M/s. Agemo Leather Components (P) Ltd., Moradabad under Section 125 of the Customs Act, 1962. (vii) I also impose a penalty of Rs. 2,79,29,618.00 (Rupees Two Crore Seventy Nine Lacs Twenty Nine Thousand Six Hundred Eighteen only) [Rs. 2,02,21,503.00 + 77,08,115.00] on M/s. Sukumar Chemicals (P) Ltd., 82/1, Railway Road, Mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which were seized on 14-9-1998, after completion of investigation and after issue of show cause notice relating to seized consignments were released to them by the preventive department as seen from the acknowledgement dated 20-3-1999. However, these documents were destroyed in the riots which took place in October, 1999. 3.3 The consignments exported were subject to examination by the officers and examination did not reveal any discrepancy. Since the goods have been exported after due examination, the rejection of drawback claims and denial of benefit of DEPB scrips are totally unjustified. 3.4 In respect of goods seized on 14-9-1998, show cause notice was issued on 11-3-1999. In the writ petition filed by the appellants, affidavit was filed by the department in November, 1999 alleging that there was collusion between the appellants and the officers in exporting the said consignments resorting to misdeclaration. However, the show cause notice dated 29-8-2005 alleging fraudulent exports have been issued only to the appellants and no show cause notice has been issued to any of the officers clearly indicating that there is no case for allegation of collusion. The impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the goods for export or the materials required for manufacture of goods for exports was found existing. In one case, as per the report of the MCD, there was no such address even existed as was given by the appellants. This shows that the appellants have fabricated story of purchase of consignments. 4.3 The appellants have shown the premises at Parsvanath Plaza, Delhi Road, Moradabad as a manufacturing unit. The investigation revealed that the said premises did not have any machinery and the same could not have been used for any manufacturing activity. The other evidence collected also show that there was no manufacturing activity. 4.4 The appellants have claimed export of consignments on factory stuffing basis. No permission from the jurisdictional Commissioner/Dy. Commr. have been taken for such activities. 4.5 Relying on the statement of Maya Chand Sharma, he submits that the appellants have exported only old and used garments. 4.6 The claim for drawback is subject to satisfaction of restriction relating to PMV. As the appellants have not produced any documents substantiating procurement at a particular price, the charge of overvaluation should be upheld. Therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant-director. It was also claimed that the enquiries were made by the department behind the back of the appellant and the same were not made known to them till 30-8-2005 when the show cause notice was issued. This submission appears to be devoid of merits. The appellants themselves have stated that FIR was filed in this case by CBI on 29-2-2000. The documents submitted by the appellants themselves indicate that Directorate General of Vigilance, Customs and Central Excise, New Delhi referred certain issues for investigation by the CBI vide their letter dated 14-3-2000. It is also on record that a reference to Interpol has been made on 6-9-2001 and report of Interpol has been received on 29-10-2002. In other words, there are clear evidences of investigation being taken by the department or at the instance of the department prior to summoning the appellant on 11-7-2003. However, such investigation need not be revealed to the appellant till the time of issue of notice. 6.4 When the appellant-director was summoned on 11-7-2003, he moved a writ petition before the Hon ble High Court of Allahabad and consequent to dismissal of the writ petition on 9-10-2003, he has appeared bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appreciated. Therefore, no merits in the submission of the appellant that they have not followed Board s instruction dated 8-12-1997. At any rate, we have not been shown any legal restriction prohibiting the customs authorities in issuing a show cause notice after 30 days of export. 6.6 A submission was also made that show cause notice has been issued proposing denial of drawback claim after several years. It is not a case of demand of duty under Section 28 of Customs Act. The drawback claims on goods exported during the period June to August, 1998 were held up as export attempted to be made in September, 1998 was found to be misdeclared and investigations were commenced. The Customs Act envisages payment of interest in terms of Section 75A of the Customs Act in the event of delay in disbursement of drawback claims. In the present case, we find the drawback claims were held up due to the conduct of .the appellants and in view of the investigation which was in progress. The delay is relevant only when the drawbacks are held admissible and the consequence is that the exporters are eligible for interest. 6.7 A submission has been made that the goods exported in the past have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant-company have exported their consignments only to one M/s. Discovery General Trading. The fact that the appellant-director was one of the partners in the said buying company abroad cannot be brushed aside. The claim that Shri Ashwin Jain became partner only for the purpose of enabling him to visit the said country for the purpose of business appears to be not believable and at any rate not relevant. It is thus clear that the buyer abroad and the exporter in India are closely linked. The receipt of sale proceeds of export consignments in the past has also to be viewed in the light of this close relationship. 7.4 On behalf of the appellants, it was claimed that the goods meant for export or materials required for export production have been procured locally from 10 to 12 parties. The enquiries made by the department show that these so-called suppliers were not available in the given addresses. The submissions on behalf of the appellants that merely because the said parties were not available at the given addresses after 5-6 years, it should not concluded that they were not existing during the relevant time sound logical. However, the claim that the appellant-director does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the question of sanction of drawback overlooking the provisions of Section 76 of Customs Act does not arise. 7.7 The finding of the Commissioner that the appellants have entered fictitious and fraudulent purchase entries cannot be found unreasonable. The claim of the appellants that the Interpol report dated 29-10-2002 is in their favour in certain aspects overlooks the purpose of investigation by the said agency. The report merely gives the version of Shri Naresh Kumar Jain, Indian national who was looking after M/s. Discovery General Trading that they imported only new garments from India. This statement cannot be considered to be a finding of Interpol in determining the genuineness of the claim of genuineness of exports. In view of the several discrepancies as noticed above, the claimed exports do not qualify for drawback as rightly held by the Commissioner. 7.8 The above finding in respect of export under drawback equally apply to DEPB which is another export benefit scheme. 8.1 The submission on behalf of the appellant that the goods were already exported and the goods were not seized and were not available for confiscation and therefore the question of imposing rede ..... X X X X Extracts X X X X X X X X Extracts X X X X
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