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TMI Blog2008 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ndaram, Vice-President and Shri A.K. Srivastava, Member (T) Shri N. A. Sayed, JDR, for the Appellant. S/Shri Bipin Garg with Amit Awasthi, Advocates, for the Respondent. [Order per: A. K. Srivastava, Member (T)]. - These are the appeals filed by the Revenue. 2. Heard both the sides and perused the records. 3. The case pertains to the export of 16 consignments effected to Turkey by M/s. Arabian Exports, Mumbai (hereinafter, in short, referred to as Respondents), under the provisions of DEPB Scheme. In the shipping bills, the goods were declared as 'Frozen Tuna Fish'. Subsequently, it was discovered by the Turkish Custom Authorities that the goods were 'Buffalo Meat'. It was found that the containers were stuffed with 95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the goods exported were neither dutiable nor prohibited nor these were under claim of drawback. Therefore, Section 113(i) was not attracted and when Section 113(i) was not attracted, penalty under Section 114 is also not attracted. He observed that this is admittedly a case of misdeclaration but there is no financial gain to be derived by the Respondents out of this misdeclaration. Since no Customs revenue or Exim Policy angle is involved, the Commissioner held that the explanation of the Respondents that it was done only to please the foreign buyer is to be accepted. Since Section 113(i) and Section 114 are not attracted and no other penal clause has been invoked, the Commissioner refrained from imposing any penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncluded that both export items viz, buffalo meat and Tuna fish were freely exportable. But this is incorrect inasmuch as during August 1998, when the export shipments were effected, the Exim Policy AM 1998-99 permitted export of buffalo meat freely subject to the condition that it is as per the provisions specified in the Gazette Notification on raw meat (chilled and frozen) under Export (Quality Control and Inspection) Act, 1963. Since the Respondents misdeclared the goods as 'Tuna Fish' in the export documents, they could not have satisfied the requirement requisite for the export of the buffalo meat. As such the goods were not freely exportable as concluded by Commissioner. Therefore, the goods are liable to confiscation and the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not impinge upon the eligibility to export as both Buffalo meat and Tuna fish were freely exportable under the Export-Import Policy; that the DEPB benefit is also the same i.e. 2% of the FOB value; and that they have already been denied DEPB to the extent of Rs. 5,00,278/-; In the light of the above, they prayed for upholding the order passed by the Commissioner. 10. The Respondents also relied upon the decisions of the Tribunal in the case of Best International v. Commissioner of Customs (Sea), Chennai reported in 2004 (178) E.L.T. 278 (Tri.-Chennai) and K. Kamala Bai v. Commissioner of Customs and Central Excise, Trichy reported in 2005 (186) E.L.T. 459 (Tri.-Chennai) in whichit has been held that the goods which have alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their (i.e. foreign buyers') requirement in order to bag the export order worth more than Rs. 2.50 cores. There was no ulterior motive on the part of the Respondents to derive any financial gain or benefit out of this. We also take note of the fact that the quality standards of the impugned goods were never questioned by the Turkish Customs Authorities, who detained them because of a wrong description and subsequently allowed them to be cleared. Keeping in view the fact that no Customs revenue or Exim Policy angle is involved and there is no FERA violation, we are of the view that the denial of the DEPB credit of Rs. 5,00,278/- is adequate punishment to the Respondents and, therefore, it is not just and proper to impose further penalty on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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