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TMI Blog2017 (9) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... er, in view of mis-declaration by the appellant, the order for confiscation of the export goods is upheld but the demand raised under section 28 is set aside. Demand of ₹ 11,58,438/- involving goods which have been already exported under various shipping bills - Held that: - no sample of the goods covered by earlier consignments have been drawn by the Customs Authorities. Further, there is no reference to any test reports of such earlier samples - Misdeclaration has to be established on the basis of positive evidence and cannot be by implication that the goods were same as what was exported later. In the absence of any kind of evidence with reference to goods exported earlier, the allegations of misdeclaration in the earlier consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aboratory, New Customs House Mumbai. iii) The Chemical Examiner, Customs Laboratory, New Customs House Mumbai reported that Ethyl Alcohol contained in the samples of 12 brands was more than 70% i.e. between 71.31% to 83.6%. iv) In view of the above facts, SCN dated 18.1.2005 was issued to the Appellant alleging that SION for Eau De Perfume under the policy is fixed as containing 70% alcohol, 20% perfumery compound or 10% each of aromatic chemicals and essential oils. That the DEPB credit is available only when the percentage of alcohol is upto 70%. However, the test reports of the samples drawn reveal that the alcohol content is more than 70%. Hence, DEPB credit of ₹ 87,811/- was disallowed and to be paid along with inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds: (i) Customs have no jurisdiction to deny DEPB credit and recover the same as duty of customs. DEPB licenses are issued by the Licensing Authority under the Foreign Trade (Development Regulation) Act. Therefore, suspension or cancellation of such licenses, revoking the license or taking any other action solely lies with the Licensing Authority under the Foreign Trade (Development and Regulation) Act. Here reliance is placed on the following cases: a. CC Vs. Sterling Foods [2011 (269) ELT 341 (Kar)]; b. Veyem Exports Vs. CCE [2011 (265) ELT 379 (Tri-Bang)]; c. Mercantile India Vs. CC [2007 (214) ELT 540 (Tri-Chen) maintained at [2009 (237) ELT A 21 Mad] d. Rammapati Exports Vs. CC [2006 (203) ELT 107 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that extended period of limitation is not invokable and the demand for the past period cannot be raised against the Appellant on the basis of samples drawn on 9.7.2011. (vi) In view of the above facts, the goods are not liable for confiscation and no penalty can be imposed on the Appellant and appellant No.2. 6. On going through the records of the case, we find that the demand has been raised in the impugned order in two parts:- (i) pertaining to the shipping bills 1401711 and 1401712 both dated 9.7.2004, which consignment was intercepted and examined. (ii) With reference to goods already exported vide several shipping bills in the past period. At the outset, we consider the two specific shipping bills. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Licensing authority under the Foreign Trade Development Regulation Act for non-grant of such DEPB credit. From the record, we find this has already been done. However, in view of mis-declaration by the appellant, the order for confiscation of the export goods is upheld but the demand raised under section 28 is set aside. 9. Now we turn to the second part of the demand involving goods which have been already exported under various shipping bills. Customs duty demand of ₹ 11,58,438/- has been raised along with interest and imposition of penalty. The basis for raising such a demand is the averment by the Executive Director in his statement to the Investigating officer to the effect that in the past also they have exported identic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to shipping bills 1401711 and 1401712 both dated 9.7.2004 is modified as follows: (i) DEPB credit of ₹ 87,811/- (Rupees Eighty-seven thousand and eight hundred eleven only) claimed for export under shipping bill No. 1401711 and 1401712 both dated 9.7.2004 is disallowed. (ii) Confiscation of export goods upheld under section 113 (d) and (i) of Customs Act 1962 and are allowed to be redeemed on payment of Redemption Fine of ₹ 3,00,000/- (Rupees Three lakh only) under section 125 ibid. (iii) Penalty of ₹ 2,00,000/- (Rupees two lakh only) and ₹ 25,000/- (Rupees Twenty-five thousand only) imposed on M/s. Stella Industries and its Director Shri Rohit Wasan under section 114 of the Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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