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TMI Blog2020 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... any stage of the proceeding that the content of the gold in the jewellery meant for export was found to be 3540 gms. instead of the declared quantity of 13,633.730 gms - Ld. Commissioner was justified in directing confiscation of the goods and imposition penalty on SGPL under the respective provisions of the Customs Act, 1962. However, the quantum of fine directed and penalty imposed appears to be on higher side in the circumstances of the case and the evidence brought on record. Hence, to meet the ends of justice the redemption fine is reduced to 20.00 lakhs and penalty to ₹ 5.00 lakhs on SGPL. While imposing penalty on Shri Roshan Vernkear, learned Commissioner analyzing the evidences observed that Shri Roshan Vernekar did not take any steps to examine the content of the gold in the gold studded jewellery before export and declaration made on behalf of the appellant company M/s SGPL. The learned Commissioner also did not accept the submission of Shri Roshan Vernekar that the making of jewellery was entrusted to one Shri Hitesh Desai, who met him only once and also without visiting the premises of Bengali Babu, who carried out the making of jewellery for export, and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88999 of 2018, 89003 of 2018, 85090 of 2018, 85186 of 2018 - A/85770-85775/2020 - Dated:- 11-9-2020 - HON BLE DR. D.M. MISRA, MEMBER (JUDICIAL) Shri Lilesh P Sawant, Advocate for the Appellant Shri R.N. Deshpande, AC, AuthRepresentative for the Respondent ORDER These appeals are filed assailing the Order-in-Original No. MUM-CUS/VBS/II/APSC/05/2017-18 dated 24.10.2017 passed by the Commissioner of Customs, Mumbai. 2. Briefly stated the facts of the case are that the appellant M/s Savithri Jewellers Pvt. Ltd. (SGPL in short) filed shipping bill No. 11026 dated 26.05.2014 for export of 15290.330 gms. Gold jewellery declaring it as 22 Carat Studded Gold Jewellery with a total FOB value of ₹ 3,47,50,800/-. In the enclosed export invoices dated 26.05.2014 the goods were described as 194 Malas Studded with Imitation Stone . Initially, on visual examination, it was found to be in order, but later on reexamination of the goods, the gold content of the consignment was found to be less than the quantity of gold declared. Against the declared weight of gold of 13633.730 gms (22 Carat), it was found to be 3540 gms. Consequently, on further detailed investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aseless. She has submitted that on re-examination at the time of export of the gold Jewellery, the gold content was found to be 3560 gms against declared weight of 13633.730 gms. She has submitted that the customs duty applicable on the quantum of gold in question was determined by M/s MMTC at the time of purchase of the gold and the applicable duty amount has already been deposited with the Customs Department by the MMTC on non fulfillment of the export obligation i.e. after the proposed examination of the said gold jewellery. Therefore, there was no demand of duty raised in the show-cause notice on the alleged mis-declaration. 4. She has further submitted that the intention to evade customs duty knowingly by suppressing the quantity of gold and cubic zirconium by the appellants Ms. Deepa S. Vernekar and Ms. Shilpa S. Vernekar SGPL is unfounded and without merit inasmuch as the declaration in the shipping bill was made by Shri Hitesh Desai. They are not the active Directors in the company and they have nothing to do with the present export, which has been stated by Shri Roshan S. Vernekar in his statement. Thus, there is no evidence against these two appellants on the allegedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, the adjudicating authority failed to record finding on any of the acts or omissions on the part of the SGPL and other appellants, which directly led to the goods liable for confiscation. 6. The learned Advocate for the appellants further submitted that as far as Directors of the company namely, Ms. Deepa S Vernekar and Shilpa S Vernekar are concerned, there are no allegation or even finding by the adjudicating authority involving the Directors in the allegation of involvement of the Director in the whole episode i.e. mis-declaration of value and quantity or description of the goods in the shipping bill. She has further submitted that there was no intentional act or omission on the part of the Manager of the Company or company itself, therefore, imposition of penalty is required to be set aside. She has submitted that the Manager of the company has filed a criminal complaint against the Karigar to whom the gold was handed over for making the jewellery and also several visits made to the latest known address/location to locate the Karigar, but the said efforts did not yield any result. She has further submitted that penalty imposed on each of the appellants under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned with the day to day business of the work nor they signed any of the documents. 11. Thus, from the statement of Roshan Vernekar and that of the other persons recorded in the impugned Order, one thing is very clear that the export quantity of gold declared in the Shipping Bill is incorrect and the same was detected by the Customs authority on a thorough re-examination of the declared gold jewellery meant for export. It is not disputed by SGPL at any stage of the proceeding that the content of the gold in the jewellery meant for export was found to be 3540 gms. instead of the declared quantity of 13,633.730 gms. Thus, in my opinion the Ld. Commissioner was justified in directing confiscation of the goods and imposition penalty on SGPL under the respective provisions of the Customs Act, 1962. However, the quantum of fine directed and penalty imposed appears to be on higher side in the circumstances of the case and the evidence brought on record. Hence, to meet the ends of justice the redemption fine is reduced to 20.00 lakhs and penalty to ₹ 5.00 lakhs on SGPL. 12. While imposing penalty on Shri Roshan Vernkear, learned Commissioner analyzing the evidences observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y presented the goods for examination on 26.5.2014 as representative of the exporter; the impugned shipping bills was signed by him. He has observed that the CHA M/s Protocol Logistics Pvt. Ltd. failed to verify the genuineness of the person who signed all export documents in respect of the impugned shipping bill that it contains proper authorization from the Directors of SGPL. Rebutting the said finding, the CHA in their grounds of appeal submitted that they have signed the export documents as disclosed to them; also Shri Vinay Shah was never their employee, hence, imposition of penalty on them is unjustified. I find force in the contention of the CHA inasmuch as the Department could not produce any cogent evidence to establish the fact that either Shri Vinay Shah or CHA was aware of the fact that the gold jewellery meant for export did not contain the quantity of gold as declared along with other imitation stone, assuming for a while that Shri Vinay Shah was the employee of the CHA. He has prepared the document as declared to him on behalf of the exporter. Therefore, following the principle of law settled in this regard cited by the Appellants, in my opinion, imposition of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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