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TMI Blog2022 (9) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... that interest at applicable rate is also to be collected on the amount mentioned at (i) above under Section 28AB of the Customs Act,1962; (iii) I order for confiscation of 47249 MT of Iron Ore Fines valued at Rs.21,95,24,400/- exported vide Shipping Bill No.4403514 dt.31.05.08 which was mis-declared of specifications and evaded payment of appropriate export duty under Section 113(i) of the Customs Act, 1962. As the goods were already exported, I am inclined to impose a fine of Rs.4,40,00,000 (Rupees four Crores forty Lakhs only) under section 125 of the Customs Act, 1962 in lieu of confiscation; (iv) I hold that M/s BBPL are liable for penalty under section 114(ii) and 114A of the Customs Act, 1962 for their omissions and commissions which rendered the goods liable for confiscation. However, I do not impose any penalty on M/s BBPL under section 114(ii) as separate penalty was proposed under section 114A of the Customs Act, 1962; (v) I order that the amount of Rs.1,18,12,250/- paid by M/s BBPL during the investigation be appropriated towards duty confirmed as at Sl.(i) above; (vi) I impose a penalty of Rs.1,41,85,056/- (Rupees one Crore forty one Lakhs eighty five Thousand a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport duty. Samples were drawn and sent for testing to the Central Revenue Control Laboratories who sent the test report dated 25.07.2008 stating that the Fe content is 61.15% by weight. 3. On receipt of the test report, the assessment of the shipping bill was finalised and the test bond executed by the exporter was cancelled by the assessing officer. Thereafter, before loading iron ore fines into the ship, the exporter had taken another sample and got it tested which showed that the Fe content was 62.38% on dry weight basis. After the goods had left India, the overseas buyer had cancelled the order and the exporter sold the goods to another customer in Hong Kong. At the discharge port, a sample of the iron ore fines was again tested and it was found that the Fe content was 62.11% on dry weight basis. 4. The Directorate of Revenue Intelligence (DRI), Visakhapatnam received intelligence that the appellant had misdeclared the Fe content in its Shipping Bill as the test report at the discharge port indicated that the Fe content was 62.11% and accordingly, the appellant should have paid the export duty at Rs.300 per MT. Based on the intelligence collected and investigation conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the total weight/Gross weight to arrive at Net Fe contents. 4. In case of any difficulty in arriving at the net Fe content, assessment may be based on test result which directly determines the Fe contents. 5. Pending assessments on the issue, if any, should be finalized accordingly." Therefore, the only test reports which have tested Fe content on wet basis must be considered while determining the eligibility of the exemption notification. In this case, the latter two test reports which they have been obtained for commercial requirements had tested Fe content on dry basis. Therefore, the entire basis for the show cause notice is faulty. (3) He further submits that as per Section 113, goods which are intended to be exported i.e., export goods, only can be confiscated and not goods which have already been exported. Therefore, the order of confiscation under section 113 cannot be sustained. Consequently, penalties imposed under section 114 also do not survive. (4) As far as the penalty under section 114A is concerned, he submits that this can be imposed only if there is a differential duty demanded to be recovered and which has been evaded due to willful suppression of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before us dated 20.06.2008 by the appellant and the fourth test report, the extract of which was recorded in para 5(I) of the impugned order that they were on dry basis. The relevant portion of the impugned order is as follows: "I. As per the Final Invoice No. BBPL/IOF/EXP/013A/08-09 dt.25.08.2008 of M/s BBPL raised on M/s Transway International Trading Ltd., Hong Kong in respect of the subject export of Iron ore fines by vessel MV TIARA GLOBE and the relevant Bank Certificate of export and realisation dt.13.03.2009 the rate charged is USD 177.50 per DMT and 62.11% Fe basis which is based on the CIQ results issued in this regard." 10. Learned counsel for the appellants clarifies that CIQ refers to discharge port report on basis of which present demand has been confirmed. Since the entire demand is based on test report on dry MT basis, which is contrary to the judgment of the Supreme Court in the case of Gangadhar Narsingdas Aggarwal and also contrary to the CBEC Circular No.04/2012 dated 17.02.2012, we find the entire basis of demand is not sustainable. Consequently, the demand for differential duty and interest cannot be sustained. 11. We further find that the confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 126(2) of the Act. Even for this reason, the confiscation under section 113 and the consequential penalty under section 114 cannot be sustained in this case. 15. As far as the penalty imposed under section 114A on the exporter is concerned, we find this section reads as follows: "SECTION 114A. Penalty for short-levy or non-levy of duty in certain cases. - Where the duty has not been levied or has been short-levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (8) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined: Provided that where such duty or interest, as the case may be, as determined under sub-section (8) of section 28, and the interest payable thereon under section 28AA, is paid within thirty days from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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