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TMI Blog2018 (12) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as the case may be. The Directorate of Revenue Intelligence (DRI), Kolkata Zonal Unit initiated an investigation that the appellant company availed Export incentive- Duty Entitlement Pass Book Scheme and Draw Back during the period 2008-09 to 2012-13, mis-declaring the same as of Indian Origin in the export documents, alleging that the exported FeSi were actually of third country origin. A Show Cause Notice dated 16.04.2014 was issued proposing demand of duty equivalent to incentive availed by the appellant company alongwith interest and penalty and also to impose penalty on Sri Anand Prakash Gupa, Director of the appellant company and appellant no. 2 herein. By the impugned order the commissioner of Customs (Port) appropriated the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice was issued on 16.04.2014 which is barred by normal period of limitation. It is also submitted that the department had not challenged the assessment order and relied upon various case laws. The main contention of Ld. Counsel is that once DGFT had already imposed penalties on the appellants, then the customs authorities cannot impose penalties for the same offence, which tantamount to double jeopardy, as held by the Tribunal in various decisions. It is submitted that the appellant no. 2, Ex-Director of the appellant company had no prior knowledge of the quantity of FeSI purchased from the local market or imported from Bhutan and therefore the imposition of penalty on the appellant no. 2 is not justified. 3. The Ld. A.R. for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt incentive. 7. I find that the appellant company had not disputed on the availment of export incentive and also paid the duty. 8. The Ld. Counsel also submitted that DGFT authorities had penalized the appellant and therefore no penalty should be imposed under the Customs Act. It is seen from the record that the Show Cause Notice dated 16.04.2014 was issued by the Additional Director, D.R.I. Thereafter, a Show Cause Notice dated 01.07.2014 was issued by the DGFT authorities for fraudulent availment of export benefits by mis-declaring the goods FeSi of Indian Origin. By Orders dated 10.09.2014 the DGFT authorities imposed penalty of Rs. 2 lacs each against three Show Cause Notices. The Ld. Counsel strongly relied upon the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under different law making the case a double jeopardy. Section 28AAA of Customs Act, 1962 can be enforced only when any "misstatement" is apparent. In the instant defence explained that not imports were made in 2 cases and in which case no evidence could be adduced that imports in one DEPB and one FMS Scrips were allowed. As per Customs Tariff Act, 1975 there is no export duty on Ferro Silicon. Goods were not available for seizure and no specific evidence could be adduced to justify mis-declaration and hence, penalty is not imposable. However, taking into consideration of the fact that the DGFT authorities had already imposed penalty upon the appellant, the penalty imposed on the appellant company is not warranted. Further, after goin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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