Custom, Excise & Service Tax Tribunal
M/S. Bhim Enterprises vs Commissioner Of Customs (Ep), Mumbai on 17 September, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. C/226 and 227/08 - Mum
(Arising out of Order-in-Original No. CAO No. 2/2008/CAC/CC/KAP dated 02.01.2008 passed by the Commissioner of Customs (EP), Mumbai).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Bhim Enterprises
Shri Chander Prakash
:
Appellants
Versus
Commissioner of Customs (EP), Mumbai
Respondents
Appearance Shri S.N. Kantawala, Advocate for Appellants Shri P.K. Agarwal, SDR for Respondents CORAM:
Honble Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 03.09.09 Date of Decision :.
ORDER NO.
Per : Shri. Ashok Jindal, Member (Judicial) These appeals are preferred by the appellants viz M/s. Bhim Enterprises - the Exporter and Shri. Chandra Prakash - Export Executive of the appellant Company. The main appellant, M/s. Bhim Enterprises had challenged the impugned order on the following grounds:-
(a) Redemption fine cannot be imposed when the goods are not available.
(b) Imposition of penalty.
(c) Not registering the DEPB Licence for necessary benefits to the appellants.
and Shri. Chandra Prakash, the Export Executive had challenged the impugned order for imposition of penalty of Rs.1,00,000/-.
2. Brief facts of the case are that M/s. Bhim Enterprises are the manufacturer and exporter of handmade rugs, mats and made ups. They filed nine Shipping Bills for export of Cotton Processed Made-ups and procured DEPB on these exports to the extent of Rs.4,68,993/- vide DEPB Licence No. 0198928 dated 30.12.1999. During the verification / registration of the DEPB scrip, it was noticed by the officers that the exporter had tampered with the triplicate copy of shipping bill filed with the Handloom Export Promotion Council with a view to claim undue benefits. Consequent to that a show cause notice was issued and the statement of Shri. Chander Prakash was recorded wherein it was admitted that the triplicate copy of shipping bill, filed with the Handloom Export Promotion Council was tampered with. On adjudication, it was held that the goods are liable for confiscation and imposed redemption fine of Rs.4,00,000/-, penalty of Rs. 1,00,000/- each on the Exporter and Shri. Chander Prakash, the Export Executive respectively and as regard DEPB Licence No. 0198928 dated 30.12.1999, the same was not registered.
3. Being aggrieved by the same, the appellants are in appeal before me.
4. Heard both sides and perused the records.
5. Shri. S.N. Kantawala, learned Advocate for the appellants submits that when there were no goods available to be confiscated nor being allowed to export under Bond, the redemption fine cannot be imposed. To support this contention, he placed reliance on Shiv Kripa Ispat Pvt. Ltd. CCE & Cus., Nasik 2009 (235) ELT 623 (Tri. LB) wherein it was held that Whether goods can be confiscated and redemption fine imposed even if they are not available for confiscation - redemption fine cannot be imposed.
6. On account of penalty, he contended that there was the only a procedural lapse and later, on such issue the Ministry gave a clarification and allowed such exports and the tampering has been done by the appellants only to obtain the benefit which was ultimately resulted in favour of the appellants and further argued that the penalty on the Export Executive cannot be imposed. To support this contention he placed reliance on CC (E.P) vs. Jupiter Exports 2007 (213) ELT 641 (Bom.) wherein it was held that when partnership firm is penalized, separate penalties cannot be imposed on partners. He further contended that the Custom authorities do not have any power to deny the DEPB scrip which is issued by DGFT and the only authority to take action against the appellant, is DGFT and not Customs authorities. With this submission he prayed that the impugned order is to be set aside.
7. On the other hand, Shri. P.K. Agarwal, learned SDR submits that as the exporter has to gain some benefits by DEPB licence which can be treated as bond under which the goods were allowed to be exported, the Adjudicating Authority has rightly imposed the redemption fine. He further submits that it is an admitted fact that the appellants act of tampering with the documents, for which they are liable for penal action. The penalties are rightly imposed on the appellants. With regard to penalty on Shri. Chander Prakash, he argued that penalty on Shri. Chander Prakash is rightly imposed as he is the only person whose statement was recorded and who admitted the guilt. To support this contention, he placed reliance on Bhalchandra V. Jadhav vs. CC (POrev.), Mumbai 2007 (208) E.L.T.127 (Tri. Mumbai) wherein it was held that the appellant / employee of the shipping agency knew that forging signatures on various export documents was meant for mis-declaration, hence liable to personal penalty. However, the penalty reduced from Rs.10 lakhs to Rs.50,000/-. He further submits that it is true that the Custom authorities cannot be issued a notice and disallowed the DGFT scrip issued by the DGFT but they can keep the registration of the scrip in abeyance, pending further enquiry and the Adjudicating Authority has not refused to admit the scrip but kept in abeyance only. The same has been reported to the DGFT for action against the tampering of the document by the appellants.
8. On careful examination of the submissions made by both the sides and reliance placed by them, I find that the impugned goods are neither available nor they were being allowed to export under any bond, goods cannot be held for confiscation and redemption fine cannot be imposed. As rightly held by this Tribunal in the case of Shiv Kripa Ispat Pvt. Ltd. (supra) , I am not convinced with the arguments made by the learned SDR that the DEPB benefit be treated as a bond. On account of penalties imposed on the appellants, I find that when the appellants have admitted their guilty, they are liable for punishment. I do not interfere with the penalties imposed on the exporter i.e. Bhim Enterprises but on the same time the penalty imposed on Shri. Chander Prakash, Export Executive, considering the role and status of the appellant, I reduce the penalty from Rs.1,00,000/- to Rs.25,000/- and with regard to DEPB licence it was rightly kept in abeyance by the Adjudicating Authority to follow up action by the DGFT.
9. In these terms, the appeals are partly allowed.
(Pronounced in Court on.) (Ashok Jindal) Member (Judicial) nsk 5