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TMI Blog2014 (3) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ger of the Exporting firm as well as the penalty imposed on CHA Shri Mukesh D Thakkar are set aside. - Decided in favor of assessee. - C/87682, 87683 & 89230/13 - Final Order Nos. A/183-185/2014-WZB/C-IV(SMB) - Dated:- 3-1-2014 - Anil Choudhary, J. For the Appellant : Shri C S Biradar, Adv., Shri D H Nadkarni, Adv., Shri V N Ansurkar, Adv. For the Respondent : Shri V C Khole, Dy. Commissioner (AR) PER : Anil Choudhary The present appeals have been filed by the exporter M/s Chawla Trading Company and its Manager Shri Santosh Chawla arising out of of Order-in-Appeal No. 286 287 (Adjn-Exp)/2013(JNCH)/EXP-65 66 dated 25.3.2013 passed by the Commissioner of Customs (Appeals), Mumbai-II, wherein an order of confiscation of goods admitted to be exported was upheld. However, redemption fine was reduced from ₹ 50 lakhs and penalty imposed of ₹ 50 lakhs on M/s. Chawla Trading Company under Section 114 (i) and 114AA of the Customs Act, 1962 was reduced to ₹ 5 lakhs and penalty imposed of ₹ 10 lakhs on Shri Santosh Chawla, Manager of the Trading firm was reduced to ₹ 2 lakhs and bank guarantee of ₹ 21,25,000/- and ₹ 7,30,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods covered by the shipping bill no. 7563198 was found packed in the sacks and these sacks had a paper affixed on it with the details - Navkar Corporation Ltd., S/B. - 7563198, quantity 2128, Shipper - Chawla Trading, CHA - M.K.Shipping, Cargo - Basmati Rice . In addition to the above, it was also found printed on the sack Khusbu - Old Basmati Rice - Net weight 35 kg. After examination, three different sacks were selected at random for drawing the samples and 3 samples in duplicate were drawn and sealed for further necessary action. Similar finding was recorded in the case of other two shipping bills namely 7575681 and 7571506 by another team of the Revenue officials, who inspected the goods in shipping bill 7557073, which was examined in the presence of Panchas and Shri Mukesh Thakkar, CHA. All the goods were loaded in three different containers was found to contain stacked sacks having print as Indian Pusa 1121 Basmati Rice - net weight 35 kgs. Thereafter, total of 6 samples in duplicate (2 samples from each container in duplicate) were drawn. During the investigation, regarding purchase invoices issued by traders based in Delhi, Officers of DRI, Delhi were requested to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on 27.8.2009, Shri Santosh Chawla on 20.8.2009 gave the statement of retraction before the Additional Chief Metropolitan Magistrate. Copy of the statement is available in the appeal filed and the statement reads as under:- (i) I have been arrested by the officers of DRI and produced before the Court today i.e. 20.8.2009 (ii) That the officers of DRI recorded my statement (iii) That the said statement has been recorded under duress and by applying pressure and force. (iv) That the said statement is not my true and voluntary statement. (v) That the statements made in the said statement should not be used against me in any future proceedings. (vi) That I am retracting my said statement and I pray that the said statement may be taken on record. (vii) That I will be filing my detailed retraction. Shri Santosh Chawla was again produced before the Court of the Additional Chief Metropolitan Magistrate and was remanded to judicial custody on the same date. 2.2 Further statement of CHA Shri Mukesh D Thakkar was recorded on 19.8.2009 wherein he has stated that Shri Vijay Mange, owner of M/s. Shree Guru Kripa Agencies and his employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962, the bank guarantees furnished should not be appropriated in lieu of confiscation. (ii) the non-basmati rice weighing 162.03 MTs valued at ₹ 48,60,900/- seized at the warehouse of M/s Rishi Ice Cold Storage (P) Ltd., Turbhe, Navi Mumbai should not be confiscated under Section 113(d) and 113(i) of the Customs Act, 1962. (iii) penalty under Section 114(i) of the Customs Act, 1962 should not be imposed upon them for the commission and omission of the acts mentioned above, (iv) penalty under Section 114AA of the Customs At, 1962 should not be imposed upon them for the commission and omission of the acts. 3. The learned Counsel for the appellants mentions that in the show-cause notice, there is no mention of sample of rice tested by authorized laboratory, as per law. The test reports (relied upon documents) and the reports relied upon in the show-cause notice are received from one Intertek India Pvt. Ltd. (testing laboratory) and such report cannot be relied upon and further, the report from Basmati Export Development Foundation is also not reliable as the said authority was authorized w.e.f. 1.10.2010. Thus they were not the authorized laborato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with 114AA was also imposed on Shri Santosh Chawla and a penalty of ₹ 20 lakhs was imposed on Shri Mukesh D Thakkar, CHA under Section 114(i) read with 114AA of the Customs Act. The penalties are also imposed on the other suppliers of rice to the exporter firm namely M/s V.K. Food Traders, Shri Ramesh Kumar Mittal, proprietor of M/s Ramesh Kumar Pawan Kumar, on Shri Ashok Kumar of M/s Sriram Traders and on Shri Rajendra Goyal of M/s R.K.Sales Corporation for mis-declaration in export. Aggrieved of the same, the appellants herein preferred the appeal before the Commissioner (Appeals), wherein the Commissioner (Appeals) was pleased to record the finding in para 9 of the order as under:- I find that in the instant case, samples were sent to three different laboratories and the test results of all three are at variance with each other. While M/s Intertek India (p) Ltd. categorically says the rice to be non-basmati rice, Regional Agmark Laboratory describes it as raw milled basmati rice and the report from the Basmati Export Development Foundation, Meerut describes them to be a mix of basmati and non-basmati rice with plain rice being in markedly higher percentage (rang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the aforementioned facts and circumstances, the Division Bench of this Tribunal after considering the facts and circumstances has found that from a copy of the report obtained by the appellant from the Revenue under RTI Act, it is evident that the export was made of rice-milled basmati rice'. Further, test report was not considered either by the enquiry authority or by the adjudicating authority. Further, since the goods under export having been proved to be basmati rice, the charges of mis-declaration of goods under export, which was the basis for investigation is vitiated and accordingly, it is held that there is no case of mis-declaration made out. Further, the impugned order of the Commissioner in the case of CHA does not stand the test of legal scrutiny and is bad in law. Thus, the clear finding has already been recorded by this Tribunal that no mis-declaration has been made out. 5. Learned Dy. Commissioner (AR) appearing for the Revenue relying on the Order-in-Appeal further states that the earlier order of this Tribunal in the case of such CHA has been challenged by the Revenue in the Hon'ble High Court of Bombay being Customs Appeal No. 88 of 2012, but no st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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