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TMI Blog2015 (11) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... f India and, thus, completing the process of export. Generally, the verification of particulars filed in the shipping bill is exclusively in the hands of the proper officer of Customs whose reports are relied upon by other agencies and offices of the Government of India. Mandates and rules, if not complied with, amounted to goods being exported in contravention of prohibition under other laws and hence crystallizing the liability to confiscation under section 113(d) of Customs Act,1962. We would note that section 113(d) used the word "prohibition" whereas in clauses (c), (e), (f), (g) and (h) of section 113 the word "prohibited" qualified the goods liable for confiscation. The deletion of this qualifying phrase by Finance Act, 2003 without any changes in clause (d) would indicate that the word "prohibition" was not intended to be read as related only to prohibited goods. It is, thus, amply clear that prohibition referred to in other sections of the Customs Act, 1962 are not limited to those notified under section 11 of the same Act. Prohibition has a much wider connotation that traverses beyond Prayag Exporters. - misdeclaration of quantity, description or value with intent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing the exporter and Customs House Agent. In the impugned order CC/PMS/50/2008 ADJACC dated 17 th November 2008, the export was permitted subject to DEPB entitlement being restricted to 6.6%. The goods, held to be liable for confiscation under Section 113(d)(i) of Customs Act, 1962, were also confiscated under Section 113 (d) with option to redeem the same on payment of fine of ₹ 75000. Penalties were imposed on the exporter and Customs House Agent. The goods were redeemed and penalty paid by the appellant-exporter before export of the goods. The appellant, thereafter, filed an appeal against the impugned order and another appeal was filed by M/s Delta Logistics against the personal penalty imposed on them; both these came up before the Single Member Bench of this Tribunal. 3. The single Member Bench hearing the two appeals took note of the contention of the learned Counsel for the appellant who, relying on the decision of this Tribunal in Kanhaiya Exports (P) Ltd vs. Commissioner of Customs (Port), Kolkata [2006(204) ELT 295 (Tri-Kol)], claimed that in matters relating to export under the DEPB scheme, Customs authorities are bereft of jurisdiction to order confiscati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India [2010 (252) ELT 513 (Del)], Hindustan Aeronautics Ltd v Commissioner of Customs, Bangalore [2010 (258) ELT 534 (Tri-Bang)], Kanji Shavji Parekh (Cal) P Ltd v Appraiser Customs, Postal Appraising Deptt [2010 (262) ELT 83 (Cal), Yashraj Industries v Commissioner of Central Excise, Mumbai IV [2013 (296) ELT 204 (Tri-Mum)], Kavia Carbons v Commissioner of Customs Tuticorin [2009 (243) ELT 547 (Tri-Chennai)], Vrundavan Exports v Commissioner of Customs (Exp), Mumbai [2005 (191) ELT 1036 (Tri-Mum)] and Commissioner v Vrundavan Export [2009 (240) ELT A42 (Bom)]. On behalf of the appellant-exporter learned Counsel averred before us that the dispute being specific to classification solely for availment of DEPB credit, the jurisdiction to initiate penal action vested exclusively with the authority under the Foreign Trade (Development Regulation) Act, 1962 and that the invoking of Section 113 of the Customs Act, 1962 was, for that very reason, improper. 5. Learned Authorized Representative placed reliance on Commissioner of Customs, Lucknow v GP Jaiswal [2015 (318) ELT 610 (SC)], GP Jaiswal v Commissioner of Customs Lucknow [2004 (167) ELT 206 (Tri-Del)], Yash Exports Inc v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of shipping bill is filed before the goods are brought into the customs area for examination and clearance thereof as per section 51. Thereafter goods are loaded on the designated conveyance in accordance with its availability for taking out of India and, thus, completing the process of export. Generally, the verification of particulars filed in the shipping bill is exclusively in the hands of the proper officer of Customs whose reports are relied upon by other agencies and offices of the Government of India. We also observe that section 113 of Customs Act, 1962 which contains the provisions relating to confiscation of export goods was amended with effect from 14 th May 2003 by deletion of the phrase dutiable or prohibited that qualified the word goods till then in clauses (c), (e), (f), (g) and (h). It is further observed that disputes relating to rate of duty rarely occurs in exports as these are, by and large, not subject to duty; consequently, valuation disputes or discrepancies are, primarily, related to various schemes under the Foreign Trade Policy. 6.3 Disputes relating to jurisdiction to confiscate export goods and to impose penalty thereon have travelled to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the two, because the review petition of Revenue for reconsideration of Prayag Exporters did not succeed despite drawing attention to the decision in Om Prakash Bhatia. 6.5 There can be no two view that adjudicating authorities under the Customs Act, 1962 are empowered to confiscate goods in terms of section 113 and to impose penalty in terms of section 114. It is in this context that the Hon'ble Supreme Court laid down in Principal Appraiser (Exports) v Esajee Tayabally Kapasi [1995 (80) ELT 3 (SC)], and followed by the Tribunal in Sripad Upadhyay v CC Chennai [2001 (138) ELT 768 (Tri-Chennai), that mere filing of Shipping Bills will not suffice for initiating these proceedings but that goods must be presented for clearance as a pre-requisite for deciding whether these, being dutiable or prohibited, had contravened the provisions of Section 113. 6.6 The consistent stand of the Tribunal in narrowly interpreting the scope of section 113(d) as stated supra, and endorsed by the Hon'ble Supreme Court in re Prayag Exporters, further restricted the jurisdiction to confiscate. However, with the deletion of the phrase 'dutiable or prohibited' with effect from 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others [(1970) 2 SCC 728] wherein it was contended that the expression 'prohibition' used in Section 111(d) must be considered as a total prohibition and that the expression does not bring within its fold the restrictions imposed by clause (3) of the Import Control Order, 1955. The Court negatived the said contention and held thus :- ...What clause (d) of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cification of the goods as stated in those documents are in accordance with the terms of the export contract entered into with the buyer or consignee in pursuance of which the goods are being exported and shall subscribe to a declaration of the truth of such statement at the foot of such bill of entry or shipping bill or any other documents. Hence, it cases where the export value is not correctly stated, but there is intentional over-invoicing for some other purpose, that is to say, not mentioning true sale consideration of the goods, then it would amount to violation of the consideration of the goods, then it would amount to violation of the conditions for import/export of the goods. The purpose may be money laundering or some other purpose, but it would certainly amount to illegal/unauthorised money transaction. Concurring with the decision of the Tribunal in upholding confiscation and imposition of penalty, the Hon'ble Supreme Court ruled thus: Considering the aforesaid facts and also the fact that this was the second case belonging to the same exporter, the authorities arrived at the conclusion that it was an organized racket to claim fraudulent drawback or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other laws and hence crystallizing the liability to confiscation under section 113(d) of Customs Act,1962. We would note that section 113(d) used the word prohibition whereas in clauses (c), (e), (f), (g) and (h) of section 113 the word prohibited qualified the goods liable for confiscation. The deletion of this qualifying phrase by Finance Act, 2003 without any changes in clause (d) would indicate that the word prohibition was not intended to be read as related only to prohibited goods. It is, thus, amply clear that prohibition referred to in other sections of the Customs Act, 1962 are not limited to those notified under section 11 of the same Act. Prohibition has a much wider connotation that traverses beyond Prayag Exporters. Accordingly, in Gurucharan Singh, the Hon'ble Supreme Court observed It not only takes within its sweep the goods which are prohibited under the Customs Act but also under other Acts. It is, therefore, impossible to ignore the binding effect of the decision in re Om Prakash Bhatia particularly after May 2003 when the words dutiable or prohibited ceased to be a requirement for invoking section 113 of Customs Act, 1962 while retaining ..... X X X X Extracts X X X X X X X X Extracts X X X X
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