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TMI Blog2017 (8) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly - the appellant had followed the proper procedure and Let Export Order was given by Customs Authorities and goods were exported and export proceeds were realized. SCN not sustainable - appeal allowed - decided in favor of appellant. - C/2324/2012-CU [DB] - C/A/70723/2017-CU[DB] - Dated:- 10-7-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri K.K. Anand (Advocate) for Appellant Shri Rajeev Ranjan (Joint Commissioner) AR for Respondent ORDER Per: Anil G. Shakkarwar The present appeal is directed against Order-in-Appeal No.85/CUS/APPL/NOIDA/2012 dated 23.03.2012 passed by Commissioner (Appeals) Customs and Central Excise, Noida. 2. Brief facts of the case are that the appellant are Merchant Exporter and had filed 11 Shipping bills dated 23.06.2010 for export of 100% Viscose/100% Cotton Ladies tops and dresses to M/s Awan Channa, Durban, South Africa. The combined assessable value of the goods involved in the said 11 Shipping bills was ₹ 98,24,691/-. It appeared to Revenue that the appellant did not follow proper procedure for export of goods. Therefore, the appellant were issued with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show cause as to why penalty should not be imposed on him under Section 114 of Customs Act, 1962 and under Section 114 AA of the same Act. The M/s Overseas Cargo Services, Shri Luv Kumar, Shri Harish Sharma and Shri Arvind Singh were also called upon to show cause as to why penalty on them should not be imposed under Sections 114 and 114 AA of Customs Act, 1962. The appellant contended before the Original Authority that they have already submitted the copies of Bank realization certificate which proves that the goods were exported and that since consignment in question were comprised of 3 types of garments having different sizes, style and variety, therefore, accordingly different shipping bills were filed and that from the registration till Let Export Order the documents in the EDI System were handled by officers who had access to the system only through password allowed them export and therefore, the possibility of any fraudulent entry in EDI System by unauthorized person was ruled out and that the goods were not overvalued and they further prayed that the proceedings may be dropped. The said show cause notice was adjudicated through Order-in-Original No.42/ADC/2011 dated 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the said Order-in-Original the Original Authority has recorded that on sifting of evidence, as hereinabove before, it emerges that export of the goods have been allowed by the Customs. He further stated that in other words the goods were got cleared from Customs by hook or crook or in such a way that they were made to reach its destination. He has held that the goods were deemed to have been registered from 22:15:09 hours to 22:28:02 hours on 23.06.2010 and deemed to have been examined from 22:47:07 hours to 22:56:43 hours on 23.06.2010. The entry of the aforesaid shipping bills were neither made in the export goods arrival register maintained at CFS, Star Track Terminal and also held that the goods did not pass through proper Customs clearance. Therefore, he has held that allegations leveled against the appellant were true and accordingly, he passed the following order where is reproduced below:- i. I order confiscated of said RMG valued at ₹ 98,24,691/- under Sections 113 (g) and 113 (h) (i) of the Customs Act 1962, having been improperly and fraudulently exported. ii. I impose redemption fine of ₹ 20,00,000/- (Rs. Twenty Lakh only) under Section 125 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original order that the goods have been exported. Relevant portion of Para 41.1 reads as under: 41.1 A perusal of the records of the case shows that there has been an export of goods but the event of export is not free from rays of doubt and suspicion percolating through, out entire story. ii. Once it has been admitted by the learned Both the authorities below that the goods have been exported, he ought to have considered the other facts attendant thereto in proper perspective being procedural requirements. It is settled law that suspicion howsoever grave cannot take place of evidence, therefore, the findings of the learned Both the authorities below being merely based on doubt and suspicion, cannot be countenanced. iii. It is also a fact that the value of goods exported by the Appellant has been realized and BRC's were duly submitted to the investigating officers by the Appellant. iv. The learned Both the authorities below have failed to appreciate that in the instant case the Shipping Bills with all due declaration were duly filed electronically, the goods in question are not prohibited and were not chargeable to export duty, the goods were du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the day. At times the system is allowed to be shut down by the Customs Officer-in-Charge of the Inland Container Depot beyond normal office hours if there is a rush of import or export works at the port. vii. All the Customs Officers attending registration, processing, examination, LEO etc. relating to export of goods are allotted a unique password to access the EDI system. The CBEC has issued Circular F. No.401/77/2009-CUS-III dated 15/05/2009 according to which the Customs Officers working at ICDs/Ports have been instructed not to divulge or share the password allotted to him with any other person. It is needless to say that the Instructions/Circular issued by the CBEC are binding on the Departmental Officers. viii. In view of the procedure for clearance of export goods through EDI system enumerated above it is abundantly clear that right from the registration of S/B till LEO, the export document (S/B) in EDI system is handled only by the Customs Officers who can have access to the EDI system only by using password allotted to them. Moreover, the EDI system is accessible only till the close of office hours or such extended time as may be allowed by the Customs Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the representative of Revenue to clarify whether any cross objection has been filed by Revenue against the above stated grounds of appeal to which the representative of Revenue has replied that Revenue has not filed any cross objection. 8. We have carefully gone through the records of the case and submissions made by both sides. We find that it is very clearly held by the Original Authority that the clearance for export of goods was given by the Customs Authorities that goods were exported and the export proceeds were realized. The Original Authority in the Order-in-Original has made some observations on few issues about the procedure followed. The appellant in the above stated grounds of appeal has very clearly submitted the procedure being followed in the EDI System and submitted that the entries in the EDI System are based on protection through password and therefore, we do not find any strength in the allegations leveled against the appellant in the said show cause notice about procedure being not followed. The requirement of admissibility of drawback is that the goods are exported and export proceeds are realized and at the time of export, shipping bills under the claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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