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TMI Blog2023 (6) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken statements from the suppliers of FeSi to the Appellant. Five suppliers or traders who have supplied the FeSi to the Appellant stated that the FeSi supplied by them were of Bhutanese origin.The statements from the suppliers indicate that even the FeSi procured by them from Indian market were also originally imported from Bhutan - the statements recorded from the suppliers clearly establish that the exported goods were of Bhutanese origin. Confiscation - HELD THAT:- The exporter has accepted their liability and deposited an amount of amount of Rs 63,40,305/- and interest of Rs 11,83,617/- even before issue of the Notice. Since the exports were made by declaring the country of origin as India , it is observed that there is a mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Saurabh Bagaria Shri Indranil Banerjee, both Advocates for the Appellant Shri S. Chakraborty, Authorized Representative for the Respondent ORDER The Appellant is a merchant exporter and had exported Ferro Silicon (FeSi) during the period 2008-09 to 2011-12, under DEPB claims. The said export goods have been procured from the domestic market. Additionally, a small quantity had also been imported from Bhutan. In respect of all the goods, prior to export, the Appellant had undertaken manual processing by way of cleaning, cutting and re-sizing. After processing, the goods have been packed in bags and exported. After completion of exports, the Appellant had obtained 20 numbers of transferable DEPB scrips and thereafter sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Appellant and its Director. He dropped the charges against the 24 importers. Aggrieved against the impigned order, the Appellant and its Director Aditya Almal have filed the present appeals against the impugned order. 4. In their grounds of appeal, the Appellant and its Director made the following submissions: (i) DGFT is the proper authority to take action against any DEPB license holder. The issue was referred to DGFT and they passed an order. Parallel action by the Commissioner of Customs on the same issue is bad in law. (ii) The goods exported have been procured from the domestic market as well as some imports from Bhutan. However, In respect of all the goods, prior to export, they have undertaken manual processing by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, the penalties imposed on the Appellants are liable to be set aside. 4. The Ld A.R reiterated the findings of the Adjudicating Authority in the impugned order. 5. Heard both sides and perused the appeal records. 6. We observe that the issues to be decided in these appeals are: (a) Whether 2169 MT of FeSi exported by the Appellant are liable for confiscation? (b) Whether an amount equivalent to import duties foregone due to imports made by different importers on the strength of the DEPB Scrip s purchased from the Appellant can be recovered from the Appellant along with interest? (c) Whether penalties under Section 114 and 114AA imposable on the Appellant and its Director separately for the same offence? 7. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor Shri Almal in his statement dated 08.01.2013 admitted that the processes of cleaning, cutting, re-sizing and packing undertaken by them were not in conformity with the requirement of value addition to the tune of atleast 25% of the DEPB value as required to change the country of origin. In his statement dated 08.10.2013, Shri. Almal stated that the size of FeSi imported from Bhutan was reduced manually by labourers and that no mechanical processing was carried out in their warehouse. It indicate that the exporter had no factory to undertake any mechanical processing to make any further value addition to the FeSi in terms of the conditions stipulated under the DEPB Scheme. We observe that the exporter has accepted their liability and dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs (Port) Kolkata, 2018-TIOL-3905-CESTAT-KOL, it has been held as under: 13. We observe that the facts of the present case are similar to the decisions cited above. Accordingly, the said decisions are squarely applicable to the present case. Following the above cited decisions, we hold that the penalties imposed on the Appellant and its Director Aditya Almal under Sections 114 and 114AA are not sustainable. Accordingly, we set aside the penalties imposed under sections 114 and 114 AA on the Appellant and it s Director. 14. In view of the above discussion, we answer the questions raised in para 6 as below: (a) We hold that the 2169 MT of FeSi exported by the Appellant are liable for confiscation. (b) An amount equival ..... X X X X Extracts X X X X X X X X Extracts X X X X
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