9911796707
TMI Blog2024 (6) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no doubt that the disputed consignment was first time exported by the Appellant No. 1 and when the suspicious and misleading and manipulation of facts came in knowledge of the Appellant No. 1, they approached the Chief Commissioner of Customs, The Principal Commissioner of Customs, Kandla Mundra Port and later the Deputy Commissioner of Customs, Customs House, Mundra on 04.05.2017. Thereafter Appellant appointed new CHA M/s Eiffel Logistics Pvt. Ltd. and after the guidance of new CHA and department they amended the shipping bill No. 5573040 dtd. 21.04.2017 and goods were then exported vide amended shipping bill No. 5573040 dtd. 21.04.2017. As per the appellant No. 1 due to extreme delay in exports, price fluctuations and Ramzan time in UAE, the buyer refused to take the delivery and ultimately the goods had to be re-imported by the Appellant No. 1 vide Bill of Entry No. 2364586 dtd. 07.07.2017. The imposition of any redemption fine and penalties on the allegations and findings of misdeclaration of goods cannot be held to be justified, the same is aside. Imposition of penalties on Appellant No. 2 - HELD THAT:- It is found that no case of aiding and abetting is made out agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s covered under SB No. 5609705 dtd. 23.04.2017 was also 52 MT. with an FOB of Rs. 2,38,92,286.90. The consignments covered under both the shipping bills were detained by the SIIB and examination was conducted under panchanama on 05.05.2017 and 08.05.2017. Representative samples were also taken and sent to CRCL, Kandla for testing. Statements of various persons were recorded during the investigation. The investigation revealed that M/s. Horizon Enterprises had misdeclared the description of goods and M/s Basant Global Trade Pvt. Ltd. (Appellant No. 1) had misclassified the goods to avail higher rate of drawback. The investigation also revealed that M/s. Horizon Enterprises was non-existing and fake and Shri Bhavesh Mehta and Shri Bhavin Kapuria had connived in attempting to export the copper coated iron rods by misdeclaring the same as copper earth rods to avail of higher duty drawback; the actual value of export goods was found to be much lower. After completion of investigation, a show cause notice dtd. 03.11.2017 was issued to both the appellants and also other persons for confiscation of goods and imposition of penalties. In adjudication, the adjudicating authority vide order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was mix up of cargo with which the appellant was being associated and the cargo one of M/s Horizon Enterprises which is apparent from statement of Shri Vipul Thakker, executive of CHA, dtd. 05.05.217 as well as a statement of Shri Bhavin Kapuria, Proprietor of M/s Marc Industries. Thus, the objectionable cargo in question was not relatable to the appellant. On appointment of new Customs Broker, under guidance of new customs broker, appellant filed amended shipping bill no. 5573040 dtd. 21.07.2017. The Appellant also approached Dy. Commissioner of Customs and as guided furnished provisional bond and bank guarantee and on release of goods, the same were exported under the cover of amended shipping bill. However, due to delay and export price fluctuation as well as Ramzan time in U.A.E., Dubai based buyer did not take delivery of goods which were reimported by the appellant. 5. He further submits that on issuance of show cause notice dtd. 03.11.2017, the appellant filed its reply dtd. 25.11.2017 and 29.11.2018 explaining in details about everything as well as giving the chronology of various dates which the appellant reiterates. In the said reply dtd. 25.11.2017, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39) ELT 408(T) (v) Dipanakr Sen, 2003 (159) ELT 260 (T) (vi) D.K. Shipping Agency, 2016 (242) ELT 280 (T) (vii) Advance Shipping Agency (2023) 2 Centax 157 (Tri.Cal) 11. Shri Himanshu P Shrimali, Learned Superintendent (AR) supported the findings in the impugned order. 12. We have carefully considered the arguments of both sides and perused the records. We find that in respect of Appellant No. 1, the case of revenue is that goods were misclassified and mis-declared under Ch. 85 with a view to avail of export incentives. However, we noticed that Shri Vipul Thakkar in his statement dtd. 05.05.2018 stated that he was confronted to the check list for Shipping Bill No. 5573040 dtd. 21.04.2017, filed by his company, to which he confirmed the facts declared thereon and he stated that this check list was a converted one, wherein the name of exporter was converted from M/s Horizon Enterprises to M/s Basant Global Trade Pvt. Ltd. which was done on receipt of communication from Shri Rajvardhan Jha alias Dhiraj (transporter) of M/s. Shivarpan Enterprises. We also find that Shri Bhavin Nileshbhai Kapuria in his statement dtd. 04.05.2017 also stated that there was two cargos to be exported. One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y shipped goods by the foreign supplier was allowed, by taking into account the bona fide of the appellants, by taking immediate steps, on detection of wrong shipment and by holding that there cannot be any mala fide on the part of the assessee. The said order of the Tribunal stand upheld by the Hon ble Supreme Court when the appeal filed by the Revenue was rejected as reported in 2003 (157) E.L.T. A87. To the similar effect is another decision of the Tribunal in the case of Aniketa Krishna International v. Commissioner of Central Excise, Jaipur [2012 (280) E.L.T. 131 (Tri.)]. 16. In such a scenario, the imposition of any redemption fine and penalties on the allegations and findings of misdeclaration of goods cannot be held to be justified. Accordingly, we set aside the same. 17. As regard the imposition of penalties on Appellant No. 2, we find that no case of aiding and abetting is made out against this appellant. There is no case made out of any abnormal gain by the appellant to indicate any collusion or abetment on his part with the exporter of the consignment under dispute. We also find that the Appellant filed the Shipping Bill based upon the information given to him by the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
