9911796707
TMI Blog2014 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... redeem was required to be filed within thirty days from the date of receipt of the order. In addition to above a penalty of Rs. 10 lacs (Ten lacs only) was on imposed M/s Prince International under section 114 (i) of the Customs Act 1962. Further, a penalty of Rs. 2.5 lacs (Two lacs fifty thousand only) was also imposed upon Shri Gyan Chand, partner of M/s Prince International, under section 114AA of the Customs Act, 1962. 3. A penalty of Rs. 75,000/- (Seventy five thousand only) was also imposed upon M/s Kunal Travels (Cargo) under Section 114 AA of the Customs Act 1962. 4. To appreciate the issue, brief facts are recapitulated. As per Notification No. 39 (RE-2008)/2004-09 dated 16/09/2008, as amended, issued by the director General of Foreign Trade, non basmati rice, is notified as a prohibited item for export, and not permitted to be exported. Only the Basmati Rice is permitted to be exported freely, subject to the conditions/specifications contained in the said notification. 5. Acting upon intelligence that M/s Prince International i.e. Party No. 1 was engaged in exportation of prohibited goods namely non-Basmati rice in the guise of Basmati rice, 34 containers, said to cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said containers were actually non-basmati rice and not basmati rice as claimed by them. It came out that the samples except sample no. 45 sent for testing to SRI were tampered with during the process in order to affect the test results. Therefore, to ascertain the actual facts, four sets of representative samples of rice from each container were again drawn by the officers in the presence of Sh. Gyan Chand partner M/s Prince International and independent witnesses. Two sets of such representative samples containing specific test memo no. were simultaneously sent to two different testing laboratories namely M/s SRI and M/s SGS, Gurgaon for testing. Details of test Samples drawn covering container wise is as under:- Sl. No. Shipping Bill No. & Date Container No. Test Sample No. & date 1 105828 dt.26.03.09 MOAU 6716752 TGHU 3064650 73 dt.14.7.09 MOAU 0666870 74 dt.14.07.09 MOAU 0612827 75 dt.14.07.09 76 dt.14.07.09 2. 1052832 dt.26.03.09 MOAU 6532652 MOAU 0724051 MOAU 0515637 MOAU 0421986 77 dt.14.7.09 78 dt.14.07.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Institute of Industrial Research. Also samples were sent to another testing house namely, SGS, Gurgaon for testing length to breadth ratio of subject goods and quality of rice (Basmati or non-Basmati). In their subsequent report dated 17.7.2009, SIIR opined that samples do not conform the length/breadth ratio and samples do not meet the requirements of basmati rice as per Agmark specifications. Similarly, SGSs report dated 20.7.2009 opined that the samples do not conform the length/breadth ratio and samples do not meet the requirements of basmati rice as per Agmark specifications. Ld.Counsel contested that once shipping bills were permitted for export as let export order had been passed that amounted to an order of adjudication and review of said order was not permissible in law. He further submitted that the first report of SRI, New Delhi dated 29.6.2009 were in favour of the appellant except one sample. Copies of the same were not supplied to the appellants, despite repeated requests. It was further contended that the department could not go on drawing samples for testing merely because reports of those samples were in favour of the appellant. He also submitted that their reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of information and subsequent test report, questionable modus operandi of appellants, connivance of certain departmental officers as well as laboratory staff of SIIR, New Delhi came to light. Such practice was followed to defraud the revenue. Only one sample in respect of test memo no.45 failed the specification and did not conform to the requirement as laid down by DGFT Notification No. 39/(RE-2008)/2004-2009 dated 16.9.2008 as amended, that is, grain of rice to be exported shall be more than 7 mm of length and ratio of length/breadth of the grain shall be more than 3.6 mm. 19. When the containers were called back from Nhava Sheva Port, Mumbai and detailed examination was done at CFS Albatross, it was found that all the test reports were manipulated. Therefore, fresh samples were again sent to SIIR, New Delhi and SGS Gurgaon. Test report, therefore, proved that the consignments were of non-basmati rice which were prohibited to be exported by DGFT Notification No. 39/(RE-2008)/2004-2009 dated 16.9.2008 as amended. These results demolish the defence of appellants that there were mixing of consignment and some non basmati rice were wrongly loaded in the containers. There co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciously involved in the export of non-basmati rice which were prohibited goods. 22. As regards to the imposition of penalty of Rs. 2.5 lakh on Shri Gyan Chand, partner of M/s. Prince International who has admitted his willful involvement in attempt to export of non-basmati rice in the guise of basmati rice, that calls for penalty on him. Considering non-basmati rice weighing 824.500 MT total value amounting to Rs. 4,59,80,285.00 (FOB) rice attempted to be exported, a very high penalty was required to be imposed. However in absence of revenue being in appeal, we do not interfere to amount of penalty imposed on Shri Gyan Chand, partner M/s Prince International. 23. Similarly role of CHA was contrary to the CHALR 2004. Attempt to export non-basmati rice in the guise of Basmati rice would not have been possible without CHAs involvement. Their conduct and contradictory stand by Shri Sunil Bhatia CHA and his manager Shri Sushil Malik regarding physical verification proves their active involvement. Same CHAs name has also come in appellants other company M/s Vaibhav Overseas where similar modus operandi was noticed. We are convinced that CHA has rightly been imposed penalty. Consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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