9911796707
TMI Blog2008 (1) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... These are applications filed by M/s. K.V.S. Exports Pvt. Ltd., and M/s. K.B.S. Manian Brothers Pvt. Ltd., seeking waiver of pre-deposit and stay of recovery of penalty of Rs. One lakh each imposed on them under Section 114 (iii) of the Customs Act, 1962 (the Act) in the impugned order. The facts of the case are that M/s. Gemini Garment Exports, Chennai (GGE, for short) had overvalued the export goods namely T shirts exported by them during the period May, 2001 to May, 2003. On investigation, it transpired that the market value of the goods exported was in all cases less than the drawback claimed. The exporter had not received the sale proceeds from the foreign buyers. Therefore, a notice was issued to M/s. GGE to recover the undue drawba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, M/s. GGE had committed an offence under the Customs Act and was liable to repay the drawback amount received by them along with interest. He found that M/s. KBS Manian Brothers Pvt. Ltd., 'abetted the exporter' M/s. GGE. Moreover, Shri D. Vignesh who held a key position in both M/s. KBS Manian Brothers Pvt. Ltd., and M/s. K.V.S. Exports Pvt. Ltd., had played a significant role in committing the offence which proved that M/s. KBS Manian Brothers Pvt. Ltd. executed illicit export joining with M/s. GGE. 2. Moving the applications on behalf of the appellants, the ld. Senior Counsel submits that the show-cause notice carried a caption 'Notice under Rule 16A of the Customs Central Excise Duties Drawback Rules, 1995 read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of sale proceeds for exports by M/s. KVS Exports Pvt. Ltd. The ground for this proposal was patently incorrect as M/s. KVS Exports Pvt. Ltd., was wrongly mentioned in lieu of GGE. Abetment meant engaging in conspiracy or instigating an act which was an offence. In the absence of clear and specific allegation about the offence committed by the appellants, the finding of the Commissioner that the appellants 'abetted the exporter' which led to his imposing impugned penalties was made without basis. The penalties deserved to be vacated. 3. Ld. SDR submits that the role of the appellants is explained in the notice and the adjudication order. The CHA had issued directions to shipping liners to divert the export consignment to Dubai wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tifiably described as 'abetment' of an offence rendering certain export goods liable for confiscation and the appellants liable for penalty under Section 114 (iii). There is no direct allegation in the notice or finding in the impugned order to the effect that the appellants assisted in the offence of over invoicing of export goods and abetted the offence of the main noticee. The activity of purchase of cheap garments showing higher price in the related invoices and creating a document, which was purported to be purchase order by foreign buyer, by Shri D. Vignesh are mentioned in the notice and the adjudication order to justify the finding and the penalty imposed. It needs detailed examination of the records assisted by informed arguments o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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