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TMI Blog2008 (5) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the goods in the drawback shipping bills filed by the party was "heat resistant rubber tape." whereas the description in the drawback schedule was "Heat Resistant Rubber Tension Tape (strip rubber elastic)"; (ii) The supporting manufacturer who had removed the goods under AR-4 M/s. Ratan Lila and Co. (hereinafter referred to as RALCO) of Delhi did not have the machinery required for producing "heat resistant rubber tension tape" and had only invoices without supplying the goods; (iii) On the advice of Shri K.K. Jain, who had procured the orders for RALCO, RALCO a co-noticee, has raised fake invoices for commission of ½ per cent of the transaction value of such invoices; (iv) In addition to the 4 shipping bills, which were taken up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r tape both have distinct use and characteristics. The use of the word 'elastic' in the AR-4 was made to give an impression to the officers that both tapes are same. However, in the shipping bills, the description of the goods was "heat resistant rubber tape" only; (xi) The bank realization certificates were not submitted in time by the party. (xii) This is a case where the product is mis-declared with a view to avail drawback and the supporting manufacturer was found not to be in existence where he was supposed to be situated nor he supplied the goods. Shri V.M. Jain, Director of DIPL was found to be responsible for the claim of drawback. The denial by Shri K.K. Jain that he had no involvement to the export, fake invoices, commission, et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic rubber. The sample retains its physical property i.e. elongation under fixed force at a temperature of 100°C - a criterion for dry heat resistance and hence may be considered heat resistant rubber tape." 6. According to the learned Advocate, this would mean that the rubber tape elongates under heat and therefore, the product in question is "heat resistant rubber tension tape". He fairly agrees that he is not able to show any technical literature or evidence in support of this contention. On the other hand, the Commissioner has recorded that both are different products and have distinct characteristics. We find that in this case, the exporters were clearly aware that the description in the drawback schedule was "heat resistant rubber te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey manufacture heat resistant elastic tape. They had also listed raw materials against the manufacturing process and mentioned "paned" through extruders. However, according to the records, available with the department, RALCO had furnished the details of machinery installed on 24-12-1996 and the list contained bottle sealing machine, bottle filling machine, mixer (stirrer), bottle drying machine and one Avery weighing scale but no extruder. In the show cause notice dated 1-4-2000, it has been alleged that the RALCO could not have manufactured the product without extruder. It is also seen that Shri C.P. Gupta, Director in his statement dated 20-9- 2000 had explained that they need only scissor for the manufacturing process while explaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported by the appellants are liable to confiscation but has refrained from imposing fine in lieu of confiscation and has stated that he will take the same into consideration at the time of imposing penalty. However, we find that in this case, the description of the goods given in the shipping bills tallies with the goods actually exported and it is not the case of the department that there was mis-declaration of description. In fact, it was a mistake on the part of the department to have allowed the drawback in the case of earlier shipping bills. Since the description given in the shipping bills was "heat resistant rubber tape" whereas, the Drawback schedule allowed the drawback for "heat resistant rubber tension tape". However, investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also given false information by claiming that the goods were manufactured in a factory and exported goods which were purchased in the open market; thus they have claimed central excise portion wrongly. Since the description does not tally with the Drawback schedule, verification was taken up. It is seen that the total central excise portion is Rs. 17 out of Rs. 60 per kg. drawback allowed. It is not clear from the order of the Commissioner whether he has taken this aspect into consideration while imposing penalty on the parties. Therefore, we feel that some reduction in the penalty has to be considered. We are not going into lot of other grounds taken by the appellants as regards the conflicting statements etc. since the appeals fail be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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