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TMI Blog2009 (7) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ush Kumar and J.M. Bansal, Advocates, for the Appellant. Shri Vijay Kumar, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - The facts of this case, in brief, leading to these appeals are as under : 1.1 On receipt of specific information that various exporters based in Punjab and Delhi were attempting to export Hand Tools by grossly mis-declaring the quantity and value in order to avail higher DEPB or draw back benefit, the export consignments of M/s. Ambey Trading Co., Jallandhar (herein referred to as M/s. Ambey) with Shri Yudhvir Singh Walia as proprietor; M/s. Classic Group of Inds., Jallandhar (herein referred to as M/s. Classic) with Ms. Neelam Chabra, Shri Ashwani Sapra and Shri Yudhvir Singh Walia as partners, M/s. Geetika Enterprises, Jallandhar (herein referred as M/s. Geetika) with Sh. Rohit Batra as proprietor, M/s. Sandeep Exports (herein referred to as M/s. Sandeep) with Smt. Rajinder Kaur Randhawa as proprietor and M/s. B.R. Enterprises, Jalandhar (herein referred to as M/s. B.R.) with Shri Bakshi Ram as proprietor, lying in various godowns of Central Warehousing Corpn. at ICD, Patparganj, Delhi, were examined on 28-9-02. All these consignm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy filed shipping bill No. 5214-5222 each dated 6-9-02 and on examination, the quantity actually found was much less than the quantity menionted in the shipping bill and the invoices. 1.3 In view of misdeclaration of quantity and value, the above mentioned export consignments of M/s. Ambey, M/s. Classic, M/s. Geetika, M/s. Sandeep and M/s. B.R. were placed under seizure. 1.4 Enquiry was made with the partners/proprietors of the exporter firms and also with the CHA and other persons handling these consignments. On enquiry, it appeared that the proprietors/partners of the above mentioned exporter firms, in connivance with Sh. Jai Singh, Sh. Ashok Kumar, Shri O.P.Jain, Sh. Jitender Kumar Chatwal, Shri Gaurav Gupta, Sh. Praveen Sharma and Sh. Deepak Sharma were exporting hand tools by grossly inflating the value of the goods so as to claim higher draw-back/DEPB benefit. Initially the goods alongwith invoices and packing lists used to be brought inside the Customs area by obtaining the carting orders from Dy. Commissioner (Customs), but thereafter the shipping bills were being filed and by forging signatures of the various customs officers and putting false seals, clearance of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst this order. 2. Heard both sides. 2.1 Shri Jag Mohan Bansal, Advocate, the Learned Counsel representing M/s. Classic, M/s. B.R., M/s. Ambey, Sh. Yudhvir Singh Walia, Ms. Neelam Chhabra, Sh. Ashwani Sapra and Sh. Jai Singh made the following submissions : (1) Penalty has been imposed under Section 114(iii) alleging violation of Section 113(i) of the Customs Act. In case of M/s. Classic and M/s. Ambey, shipping bills had been filed in which correct quantity and description had been declared and, therefore, there was no misdeclaration. In case of M/s. B.R., even shipping bill had not been filed and as such there was no declaration. When there is no declaration made, there is no question of misdeclaration and no question of confiscation under Section 113 and penalty under Section 114. This contention is supported by the Tribunal's judgments in cases of - (a) Kabul Textile v. CCE - 2004 (174) E.L.T. 470. (b) Jacson Thavera v. Collector of Customs - 1987 (27) E.L.T. 121 (c) Dynacast Industries v. Collector of Customs - 1999 (113) E.L.T. 524 (2) The penalty under Section 114(iii) could be imposed only if the goods had been exported under drawback scheme. In case of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder drawback claim, and since the provisions of Section 114(iii) are applicable only in case of misdeclaration in respect of goods attempted to be exported under drawback claim, this section is not applicable. (4) Shri Praveen Kumar and Shri Deepak Kumar are not associated with the goods of M/s. B.R. (5) Misdeclaration in the invoices and packing list on which carting of the goods was allowed does not amount to "attempt to export the goods improperly". (6) The judgment of Hon'ble Supreme Court in the case of State v. Mohd. Yakub Others reported in 1983 (13) E.L.T. 1637 (S.C.) relied upon by the Department does not help the Deptt's case. In this regard, the Appellant rely on the Tribunal's judgment in the case of Devdas Adhikari and Dinabandhu Adhikary reported in 2008 (222) E.L.T. 299. 2.1.2 Shri Naveen Malhotra, Advocate, the ld. Counsel representing Shri Om Prakash Jain, Shri Gaurav Gupta and Shri Jitender Kumar Chatwa, repeating the submissions made on behalf of other Appellants, emphasized that there was no misdeclaration and hence the provisions of Sections 113(i) and 114(iii) are not applicable. 2.2 Shri Vijay Kumar, the learned Departmental Representative emphas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. Hon'ble Supreme Court in para 15 of this judgment observed that the provisions of Section 113 of Customs Act must be construed in manner which would suppress the mischief, promote their object and prevent their subtle evasion and foil their artful circumvention and thus construed the expression "attempt" within the meaning of these penal provisions, is vide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contraband goods deliberately to the place of embarakation, such act or acts being reasonably proximate to the completion of the unlawful export. The ratio of this judgment of the Hon'ble Supreme Court is squarely applicable to the facts of this case. (4) In this case the misdeclaration was done by five different firms but the CHA is common in all the cases. The adjudicating authority in para 77(f) of the impugned order-in-original has given clear findings that the CHA and their persons In earlier simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciaration. 4. From the circumstances in which the shipping bills and the revised invoices mentioning correct quantity, description and value of the goods has been filed by M/s. Ambey and M/s. Classic, it is clear that the same have been filed to cover up their attempt of misdeclaration as the exporters obviously had got alerted. There is no explanation as to why at the time of obtaining carting order, the invoices mentioning much higher quantity and value had been presented. Moreover, we also find that in case of M/s. Ambey while the consignee in the invoice presented at the time of obtaining carting order was M/s. Wispville Ltd., 299-303, Battersea Part Road, London SW 114 LX, in the invoice bearing the same number filed along with the Shipping Bill the consignee's, name is M/s. BON Hardware Trading EST, P.O. Box No. 27196, Sharjah, UAE. In view of this, no cognizance can be taken of the Shipping Bills filed by M/s. Classic and M/s. Ambey. The question now arises as to whether on the basis of huge difference between the quantity and value as mentioned in the invoice and packing list originally presented to the Customs while obtaining carting orders and the quantity, value and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of Shri D.K. Singhal discussed in para 51 of the SCN. In this regard, para 51 of the SCN is reproduced below : "51. Whereas Shri D.K. Singhal s/o Shri P.D. Singhal resident of 14/58, C.H.B. Jodhpur appeared before the Superintendent (SIIB) on 11-11-02 as an authorized representative of Shri S.K. Pitti, Proprietor of M/s. Jindal International, Nagore. The department had issued summons to Shri S.K. Pitti. Shri D.K. Singhal informed that he is the nephew (maternal) of Shri S.K. Pitti and as mother of Shri S.K. Pitti was critically ill, therefore he (S.K. Pitti) authorized him, in writing, to appear before the Superintendent and tender his voluntary statement. The authorization letter brought by Shri D.K. Singhal was taken on record. In his statement dated 11-11-02 recorded under Section 108 of the Customs Act, 1962, Shri D.K. Singhal, inter alia, stated as an authorized representative of M/s. Jindal International, Nagore and Shri S.K. Pitti, proprietor of M/s. Jindal International; that M/s. Jindal International was established in the year 1966; that he was looking after the work of M/s. Jindal International from 1997 to 2002; that from Dec., 2000 to Jan., 2002 he also worked in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms used to be about ten times less than the declared weight and the value and description were also misdeclared; that due to this mis-declaration they used to avail ten times more DEPB benefits; that M/s. Nibras at Dubai used to receive two sets of shipping documents - one through the bank which was according to the declared weight and value (usually ten times more than the actual) and the other one directly from the Indian supplier which showed the actual weight and value; that M/s. Nibras used to submit the invoice and documents like Packing List etc. showing the actual quantity and value of the goods to the Dubai customs and not the other one received through the Bank; that the excess remittances as per declared weight and value used to be arranged through Hawala channels to enable the Indian exporters to claim excess export benefits; that M/s. Nibras, Sharjah never used to submit the invoice showing the declared value etc. received through exporters in India to Dubai Customs as due to ten times more value the importer would have been required to pay ten times more duties so that importers i.e. M/s. Nibras, Sharjah either used to submit the other copy of the invoice received th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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