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TMI Blog2004 (9) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... with the entry made under the exports Act liable to confiscation. Thus for the first time with effect from 14-5-03 this amendment has been made which supports our findings that prior to 14-5-2003 for overvaluation of any goods which are neither dutiable nor prohibited, provisions of Section 113 of the Customs Act, 1962 were not applicable. Regarding the seized goods on 24-2-2001 from Plot No. 18, Paigah Colony, S.P. Road, Secunderabad, they are not liable to confiscation as held by us earlier but these goods do not become even export goods as the shipping bills were yet to be filed in respect of these goods and the goods had not entered the export area. Therefore, even on this ground these goods are not export goods and are not liable to confiscation and, therefore, we set aside the order of confiscation of these goods as well consequently, no penalties are imposable on the 3 appellants. We also observe that in this case, the department has not led any evidence by way of expert opinion regarding the value of export goods or whether the goods are usable as Ladies Nightwear were or are small, uneven, unshaped and cannot be worn by any person. Appellants in their reply to show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2003 (153) E.L.T. 4 (S.C.) holding that no interference is called with the impugned judgement as Section 1113(d) is not applicable to the present case. 2. In the present cases by the impugned order the Commissioner has imposed penalties under Section 114(i) of the Customs Act, 1962 and the impugned goods sought to be exported under DEPB scheme were held to be liable for confiscation under Section 113(d),(h) and (i) of the said Act and ordered to be released on payment of redemption fine. The ld. Commissioner held that the 3 appellants had undertaken an elaborate plan for export of cheap garments which cannot be worn by any person of any age and mis-declared by grossly overvaluing the products for the purpose of availing fraudulent DEPB credit. 3. M/s. Ganesh Yarntext Export Pvt Ltd., Secunderabad and M/s. Aadee Exports and Imports, Mumbai filed in all 11 shipping bills for export of Ladies Nightwear to Dubai through ICD, Sanathnagar, Hyderabad under (DEPB) Scheme. Shri Suresh Jhunjhunwala is uncle of Shri Sachin Jhunjhunwala who is director of M/s. Ganesh Yarntex Export Pvt. Ltd. and father of Shri Deepak Jhunjhunwala, proprietor of Aadee Exports and imports. The cargo covered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue involved is squarely covered in favour of the appellant, there is no question of keeping the appeal pending as the same could be conveniently disposed of at the stay stage itself and there is no reason to keep them pending in view of the settled legal position. Thus the Bench has overruled the objection raised by the ld. DR. After waiver of the pre-deposits the appeals themselves have been taken up for final disposal. The ld. Counsel also submitted that the charge in the show cause notice and the findings of the ld. Commissioner are that the export goods were grossly overvalued for claiming higher DEPB. He submitted that the provisions of Section 113(d), (h) and (i) are not applicable as the export goods are neither dutiable nor prohibited goods. He further submitted that the issue is overvaluation for claiming higher DEPB and it has been held that unless goods are dutiable or prohibited the provisions of Section 113 of the Customs Act, 1962, regarding confiscation will not be applicable and consequently no penalty could be imposed under Section 140(i) as penalty is imposable only on a person who does or omits to do any act which act or omission would render such goods liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods which are dutiable or prohibited will be liable to confiscation under Section 113 of the Customs Act, 1962. The ld. DR reiterated the findings of the ld. Commissioner. 6. We have. carefully considered the rival submissions. The ld. Commissioner in her order has held that the shipping bills under DEPB were filed mis-declaring the goods as Dyed, printed Nightwears (maxis) in various style/size/design/colours, made, from P/L woven Fab and by highly overvaluing the same. She has also held that by mis-declaring the description and value in the shipping bills and filing wrong declaration the exporter has contravened Rule 11 of Foreign Trade (Regulation) Rules, 1993 and as the condition subject to which the goods were allowed to be exported but are not complied with the subject goods are prohibited goods in terms of Section 2(33) of the Customs Act, 1962. She has also relied on the Supreme Court judgment in the case of Om Prakash Bhatia. Accordingly, she has denied the DEPB and held the goods liable to confiscation and imposed penalties. We find that the case of Prayag Exporters Pvt. Ltd. was also overvaluation of export goods for the purpose of claiming higher DEPB. The Tribunal held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods on 24-2-2001 from Plot No. 18, Paigah Colony, S.P. Road, Secunderabad, they are not liable to confiscation as held by us earlier but these goods do not become even export goods as the shipping bills were yet to be filed in respect of these goods and the goods had not entered the export area. Therefore, even on this ground these goods are not export goods and are not liable to confiscation and, therefore, we set aside the order of confiscation of these goods as well consequently, no penalties are imposable on the 3 appellants. 7. We also observe that in this case, the department has not led any evidence by way of expert opinion regarding the value of export goods or whether the goods are usable as Ladies Nightwear were or are small, uneven, unshaped and cannot be worn by any person. Appellants in their reply to show cause notice dated 6-12-2001 had specifically pointed out that there is no expert evidence and the DRI had taken representative samples at the time of making seizure Panchanama but no expert opinion regarding value or the character of goods was obtained. Further, the ld. Commissioner did not permit cross-examination of the witnesses whose statements were relied upon. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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