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TMI Blog2005 (8) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... tor he should bring in expert opinion/advice as to the nature of the goods so that the matter can be determined and appreciated in appeal by us. Since there is no material Test Report of an expert, to upset the plea, of the appellants, that the goods were not misdeclared in description, we find no reason to arrive at to uphold the confiscation liability u/s 113(h)(ii) as arrived at by the Commissioner. In the facts and circumstances of this case, when we do not find a liability to confiscation u/s 113(d), and also, after considering the status of the goods brought to a Customs area, on a Shipping Bill, filed u/s 50, but wherein these goods have still not attained the status of 'Export Goods' to be loaded on the vessel u/s 39 of the Customs Act, inasmuch as Section 51 clearance was not observed, would induce us to come to a conclusion, that there was force in the appellants' request, through their CHA on 10-3-2003 of requesting the goods to be 'taken back to town', which should have been considered. Export is an admittedly series of operations, and that Section 51 for the goods having not been traversed the goods do not become Export Goods is the view held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough their Custom House Agent, they filed an application requesting the goods to be returned 'back to town'. 1.3 However, on 2-3-2003 the goods were examined by the Customs authorities and it was alleged that the said goods were rags/chindis instead of fabrics as declared and they were grossly overvalued as per the FOB declaration. Enquiries were conducted and statements were recorded and a show cause notice dated 13-7-2004 was issued calling upon the exporters to show cause : (i) Why the goods covered under the two Shipping Bills should not be confiscated under Section 113(h)(ii) of the Customs Act, 1962? (ii) A penalty under Section 114 of the Customs Act, 1962 should not be imposed; (iii) Why the credit of DEPB benefit amounting to Rs. 8,32,200/- should not be rejected, as well as rebate claim amounting to Rs. 6,39,845/- should not be rejected, as they were inadmissible goods under DEPB Scheme and the claims were fraudulently made. 2. The Commissioner, after granting a hearing, rejected the contentions made by the appellants and arrived at a conclusion by himself examining the sample that : (a) The sample of the goods detained was irregularly woven warp and weft, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this review petition was filed by Revenue, after the decision in Om Prakash Bhatia v. Commissioner - 2003 (155) E.L.T. 423 (S.C.), we find no reason to uphold the confiscation under Section 113(d) of the Customs Act, 1962 for exports under DEPB Scheme. (i) The ld. D.R. for the Revenue made efforts and drew our attention to apply the decision in the case of Yash Exports Inc. v. CC, Lucknow - 2005 (179) E.L.T. 238 (Tri.-Del.) wherein the Bench, after referring the decision in the case of Prayag Exports Pvt. Ltd. (supra) held that in view of the decision of the Supreme Court in Om Prakash Bhatia v. CC, the confiscation under Section 113(d) of the Customs Act, 1962 in cases of export consignments under the DEPB Scheme could be upheld for the purposes of over valuation arrived and established by the Department. (ii) We find from the perusal of this decision in Yash Exports, that the decision has been arrived at without considering the fact of the review petition in the case of Prayag Exporters Pvt. Ltd. which was filed by Revenue in the Supreme Court after the decision of the Supreme Court in Om Prakash Bhatia's case and the subsequent rejection by the Apex Court, of the revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain conclusion on physical examination of the samples himself that the goods under detention were irregularly woven warp and weft which were defective woven material and therefore could not be used as fabrics. This personal assessment of the ld. Commissioner, to impugn the description of the goods, cannot be upheld. The Commissioner may be an expert in Textiles but as an adjudicator he should bring in expert opinion/advice as to the nature of the goods so that the matter can be determined and appreciated in appeal by us. Since there is no material Test Report of an expert, to upset the plea, of the appellants, that the goods were not misdeclared in description, we find no reason to arrive at to uphold the confiscation liability under Section 113(h)(ii) as arrived at by the Commissioner. (f) When we find that there is no liability to confiscation of the goods, we find no reason to uphold the penalties as arrived at. (g) In this case, arguments were advanced and reliance were placed by the ld. Advocate for the appellants on the Supreme Court's decision in the case of Principal Appraiser (Exports) v. Esajee Tayabally Kapasi 1995 (80) E.L.T. 3 (S.C.) and the findings reported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port, the bringing of the goods simplicitor to the Customs area under a Shipping Bill filed by carting the goods after permission from the Port authorities, is not a cause for their liability to confiscation under Section 113(d), since no prohibition under the Customs Act, 1962 would be found by us in this carting of goods. The goods which are covered by a Shipping Bill as in this case, can be brought to and carted to the Customs area, they have not acquired the status of Export Goods till they traverse Section 51 stipulation thereafter are ready to be taken on a vessel and therefore are not prohibited in any manner under the Customs Act, 1962. Examining the provisions under DEPB, it is found that in the case of Kobian ECS India Pvt. Ltd. v. CC, Mumbai - 2003 (157) E.L.T. 662 (Trib.), the Tribunal had held that a declaration for DEPB is not a declaration which should be read as a prohibition under the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 since that Scheme of DEPB has been announced under powers of Section 19 of the Foreign Trade (Development and Regulation) Act, 1992 and not under Section 2 of the said Act. Since the prohibitions under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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