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TMI Blog2022 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... pping bills along with the requisite documents that the goods are old used ones - It is apparent on record that the impugned shipment was detained on 17.02.2017, the Commissioner (Appeals) has held the letter dated 31.01.2017 without any acknowledgment for the inferior quality of goods as nothing but an afterthought. Per contra the emphasis of appellant while challenging these findings is that since the shipment was detained on 17.02.2017, there was no occasion with the appellant to mention the observations of Panchnama dated 17.02.2017 in the letter dated 31.01.2017. Praying withdrawal of the shipment/cargo that too on a ground of order being cancelled by the buyer due to the late delivery is a deliberate concealment on the part of the appellant. In such circumstances, the said concealment was nothing but an afterthought to cover up the mistake which the appellant had already committed i.e. of mis-declaration of the goods and overvaluing them with the sole intention of availing a higher duty drawback. The duty drawback is otherwise not available with respect to the export of old and used goods. These observations are sufficient to hold that the above observed concealment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2022 [SM] - FINAL ORDER No. 50676-50677/2022 - Dated:- 2-8-2022 - DR. RACHNA GUPTA, MEMBER (JUDICIAL) Ms. Priyanka Goel, Advocate for the Appellant Ms. Tamanna Alam, Authorized Representative for the Respondent ORDER Present order disposes of two appeals as mentioned above, arising out of the common show cause notice and the common orders of Adjudicating Authorities below. 2. The facts relevant for the impugned adjudication are that M/s. Bhavana Jindal Exim Pvt. Ltd., an exporter had put in export two shipments covered under shipping bill Nos. 3718938 and 3718934 both dated 27.01.2017 as were filed through their CHA M/s. Sadagati Clearing Services Pvt. Ltd. Along with shipping bills the documents as that of invoice, packing list, export value declaration i.e. the declaration required for export of readymade garments for availing higher all industries rate of drawback were filed along with said shipping bills. The Goods to be exported under these documents were declared as Leather Apparels, Leather Gents Long Jacket and Leather Gents Jacket and were mentioned to be under drawback scheme. The goods were to be exported to M/s. Unimax Handbags, Los Angeles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-Appeal No. 1153-1154/2021-22 dated 27.09.2021. Being aggrieved the appellant is before this Tribunal. 3. I have heard Ms. Priyanka Goel, learned Counsel for the appellant and Ms. Tamanna Alm, learned DR for the department. 4. It is submitted by learned Counsel for the appellant that the demand has wrongly been confirmed against the appellant. Appellant himself vide letter dated 31.01.2017 had requested the Dy. Commissioner of Customs (Export) for withdrawal of both of the consignments i.e. immediately after the goods which were delivered by the supplier were found to not to be same as sample shown to the appellant before the delivery of the goods. Hence, the allegation that the appellant tried to export less value goods by overvaluing them to avail the benefit of high duty drawback are absolutely wrong. Commissioner (Appeals) has confirmed the demand holding that the defence taken by the appellant is an afterthought. The statement of the appellant was recorded on 29.03.2017 but the letter was sent to the department on 31.01.2017 immediately when the CHA of the appellant had brought to the notice of the appellant that the goods in the consignment instead of being the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted to have been Rs.500/- per piece which admittedly has been declared at Rs.8,762/-. Similar variation is with respect to the price of long leather jackets. In light of those admissions, the allegation in the Show Cause Notice are rightly held to have been proved against the appellant. In the given circumstances, the act of mis-declaration and intentional overvaluation is a definite act which invites penality under Section 114 AA. It is also submitted that companies are equally liable for the penalties under these sections. With these submissions and impressing upon no infirmity in the order under challenge, the appeal is prayed to be dismissed. 6. After hearing the rival contentions and perusing the entire records, it is observed and held as follows: 6.1 The Commissioner appeals has rejected the declared value of exported goods, has held the goods liable to confiscation and has imposed redemption fine and penalties on the appellants on the basis of the following findings: i. The value was liable to be rejected as the export goods were found of inferior quality as per examination conducted by the officials. ii. Seizure of the goods was on a reasonable belief. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide letter dated 31.01.2017 for withdrawal of shipment. 9. It is the settled law that admissions need no proof and are admissible as such if not retracted. Apparently neither appellant nor said Mr. Anit Kumar Jha have retracted their statements. These statements are therefore out of the scope even of Section 138B of Customs Act, 1962. The appellant has strongly impressed upon that alleged mis-declaration and overvaluation was absolutely unintentional and non-deliberate act of the appellant as it was not in the knowledge of the appellant at the time of filing the shipping bills along with the requisite documents that the goods are old used ones. Reliance has been placed on letter dated 31.01.2017 submitting that the letter was much prior than the date of detention of appellants goods i.e. 17.02.2017. The said letter has not been produced by the appellant. I observe that Commissioner (Appeals), in the order under challenge, has annexed the scanned copy of the said letter. Perusal thereof shows that the only reason for withdrawal of the cargo (shipment in question) mentioned in that letter is that the appellant s buyer has cancelled the shipment due to delay in delivery. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such circumstances, praying withdrawal of the shipment/cargo that too on a ground of order being cancelled by the buyer due to the late delivery is a deliberate concealment on the part of the appellant. In such circumstances, the said concealment was nothing but an afterthought to cover up the mistake which the appellant had already committed i.e. of mis-declaration of the goods and overvaluing them with the sole intention of availing a higher duty drawback. The duty drawback is otherwise not available with respect to the export of old and used goods. These observations are sufficient to hold that the above observed concealment was with the intention to mis-declare and overvalue the goods to claim ineligible duty drawback. Commissioner (Appeals) is held to have committed no error while holding that letter dated 31.01.2017 was an afterthought. Hence, I do not find any infirmity as far as the rejection of declared value of export goods and the order for their confiscation and imposition of redemption fine is concerned that too on the bases of letter dated 31.01.2017 being an afterthought. To that extent order under challenge is hereby upheld. 12. Coming to the issue of imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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