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TMI Blog2022 (9) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... after a long gap on 29.6.2015 alleging violations of Section 33, 34, 40(a) and 50 of the Customs Act, 1962 which are solely linked with examination of the export cargo by the Customs. This shows that the Revenue did not find sufficient evidence in support of its initial intelligence that the export was intended for getting undue benefit of export incentive schemes by overvaluation - it is found from the records that both CWC and Customs confirmed that loaded trucks are allowed to be parked in the CWC and it is not mandatory to allow entry only after assessment of the Bill of Export. Examination of consignment as per customs norms is conducted inside CWC parking before Let Export order given by the Proper Officer of Customs. It is not disputed that trucks loaded with goods were parked in CWC parking which is notified as custodian of Import and export goods and that those were recorded in their books and that clearance for export could be allowed after examination and under physical supervision of the Customs Officer right from the CWC parking to Physical border, gives no space for doubt that it could be smuggled. The proceeding is based on the allegation that the goods loaded in W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exporter Shri Raj Kumar Shaw, Proprietor of M/s Sundary Fashion, Shri Prakash Ghosh, Proprietor of M/s. Overseas Shipping Agency and M/s. United Customs House Agency (P) Ltd. (UCHA in short). By passing the impugned Order, the Adjudicating Authority has ordered confiscation of goods loaded in two vehicles bearing Registration Nos. WB-23 X 1615 and WB-23-4778 as well as the vehicles with option to redeem by payment of Fine of Rs. 2.00 Lakhs and Rs.20.00 Lakhs respectively for the goods and Rs.25,000/- for vehicle No.WB-23 X 1615 and Rs.50,000/- for vehicle No.WB-23-4778. Also Penalty of Rs. 5 lakhs has been imposed upon the exporter Shri Raj Kumar Shaw, Proprietor of M/s Sundary Fashion under Section 114(iii) of the Customs Act, 1962 and Penalty of Rs. 5 lakhs each has been imposed upon Shri Prakash Ghosh, Proprietor of M/s Overseas Shipping Agency and M/s United Customs House Agency (P) Ltd. under Section 114(iii) and 114 AA of the Customs Act, 1962. No appeal has been filed by any of the owners of the carrier vehicles. Since all the three appeals are against the common Order-in-Original arising out of same cause of action, they are taken up together for hearing and disposal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 in respect of goods loaded in vehicle No. WB-23-4778. Seized vehicles were also released provisionally. 3. During investigation, the exporter submitted Invoice No. SF/29/10-11 dated 02.8.2010 for export sale of 6560 kgs of Sarees fabrics and stated that goods covered under the Invoice loaded in vehicle No. WB-23-4778 had been sent to CWC Petrapole along with 441 Kgs of Fabrics loaded in Vehicle No. WB-23 X 1615 and covered under Invoice No. SF/28/10-11 dated 02.8.2010. The buyer was M/s Hera International, Bangladesh and the term of payment was under Letter of Credit and/or Delivery against Payment (DP). As payment against the consignment covered under Invoice No. SF/29/10-11 dated 02.8.2010 was not yet cleared, preparation and presentation of Bill of export against the same was kept on hold. The payment against Invoice No. SF/28/10-11 dated 02.8.2010 was covered by Letter of Credit, so Bill of Export for this being No. 16413/EXP/PTPL/DEPB/2010 dated 03.08.2010 was processed by the CHA. Regarding recovery of unauthenticated copy of the Invoice bearing No. SF/28/10-11 dated 02.8.2010 with different quantity, he expressed his ignorance and during examination by the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the Invoice and other documents related to goods loaded in Vehicle No. WB-23-4778 were lying in his office pending finalization of payment; He had no knowledge of any parallel Invoice said to be recovered on 04.8.2010 for which no formal Panchanama had been drawn. Regarding alleged violation of the provisions of Sections 33,40(a) 50(1) of the Customs Act, 1962 and proposed confiscation of the export goods under Sections 113(f), 113 (g) 113 (h)(i) of the Customs Act, 1962, he submitted that as an exporter he is not supposed to know how are the vehicles parked in Central Warehousing Corporation (CWC) and what is the procedure for examination and clearance for export of the consignment. However, to the best of his knowledge, there was no procedural violation in parking and placing the cargo in CWC. 8. Shri Prakash Ghosh, in his reply to the Show Cause Notice submitted that he was a forwarding agent. Regarding alleged violation of the provisions of Sections 33, 34, 40(a) 50(1) of the Customs Act, 1962, he submitted that parking of the vehicles in CWC was in consonance of the procedure laid down vide Public Notice No. 08/Cus/WB/2003 dated 11.7.2003 issued by the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of export incentive scheme. The SCN which was issued on 29.6.2015 after almost 5 years from the seizure without seeking extension of time from the appropriate authority, alleged violation of the provisions of Sections 33,34,40(a) 50(1) of the Customs Act, 1962 and proposed confiscation of the export goods under Sections 113(f), 113 (g) 113 (h)(i) of the Act and that of vehicles under section 115(2) ibid. Consequential penalty upon the exporter under Section 114(iii); and upon the CHA and the C F agent under sections 114(iii) 114AA was proposed in the SCN. Thus, the reasonable belief leading to the seizure of goods was not corroborated by the investigation. The entire proceeding, therefore, is vitiated legally. 11.1 Ld. Advocate further submitted that contravention of sections 33, 34, 40(a) and 50 of the Customs Act, 1962 was alleged in the SCN and confiscation and imposition of consequential fine and penalty was proposed accordingly. Section 33 states thatunloading and loading of goods at approved places only; Section 34 states that goods not to be unloaded or loaded except under supervision of Customs Officer;Section 40 states thatexport goods not to be loaded unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistry also informed as under: The new Section 114AA has been proposed consequent to the detection of several cases of fraudulent exports where the exports were shown only on paper and no goods crossed the Indian border. The enhanced penalty provision has been proposed considering the serious frauds being committed as no goods are being exported, but papers are being created for availing the number of benefits under various export promotion schemes. The Committee observes that owing to the increased instances of willful fraudulent usage of export promotion schemes, the provision for levying of penalty upto five times the value of goods has been proposed. The proposal appears to be in the right direction as the offences involve criminal intent which cannot be treated at par with other instances of evasion of duty. The Committee, however, advise the Government to monitor the implementation of the provision with due diligence and care so as to ensure that it does not result in undue harassment. 13. Concluding his argument, Ld. Counsel for the Appellants prayed for setting aside the impugned Order of confiscation of goods and imposition of penalties upon the Appellants with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvaluation. The voluminous investigation report lost relevance as the allegation is confined to violations of Section 33, 34, 40(a) and 50 of the Act. 18. For better understanding , the sections are reproduced below :- Section 33. Unloading and loading of goods at approved places only. - Except with the permission of the proper officer, no imported goods shall be unloaded, and no export goods shall be loaded, at any place other than a place approved under clause (a) of section 8 for the unloading or loading of such goods. Section 34. Goods not to be unloaded or loaded except under supervision of customs officer. - Imported goods shall not be unloaded from, and export goods shall not be loaded on, any conveyance except under the supervision of the proper officer: Provided that the Board may, by notification in the Official Gazette, give general permission and the proper officer may in any particular case give special permission, for any goods or class of goods to be unloaded or loaded without the supervision of the proper officer. Section 40. Export goods not to be loaded unless duly passed by proper officer. - The person-in-charge of a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This shows that parking of a vehicle at a particular place is prerogative of CWC officials and the exporter or to say his agent has nothing to do with it. 20. I find from the records that both CWC and Customs confirmed that loaded trucks are allowed to be parked in the CWC and it is not mandatory to allow entry only after assessment of the Bill of Export. Examination of consignment as per customs norms is conducted inside CWC parking before Let Export order given by the Proper Officer of Customs. It is not disputed that trucks loaded with goods were parked in CWC parking which is notified as custodian of Import and export goods and that those were recorded in their books and that clearance for export could be allowed after examination and under physical supervision of the Customs Officer right from the CWC parking to Physical border, gives no space for doubt that it could be smuggled. The proceeding is based on the allegation that the goods loaded in WB23 4778would have been exported under cover of another vehicle in respect of that the bill of export was assessed by the Customs Officer. 21. I agree with the submission that the said trucks parked in CWC cannot be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Broker (CHA) has only filed the Bill of Export pertaining to the goods loaded in WB-23 X 1615. DRI conducted the investigation and prima facie found that another vehicle loaded with export goods of same exporter was likely to be exported without filing export documents with Customs. Further I find that in the present case, penalty has only been imposed on the CHA and C F Agent under Section 114AA of the Act and no penalty has been imposed on the exporter. Further, I find that the ingredients of Section 114AA of the Act are not applicable to the CHA/ C F Agent and is meant against the fraudulent exporter as is made out from 27 th Report of the Standing Committee on Finance (cited supra). I also find that in the present case, the Department has failed to prove that there was a mala fide and willful mis-representation by the Customs Broker. It seems that the Commissioner has totally misunderstood the facts and has wrongly observed that the appellants Customs Broker and the C F have been operating from the same premises which leads one to suspect the bona fides of the appellants. This finding of the Commissioner is factually incorrect and without any basis. Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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