Custom, Excise & Service Tax Tribunal
M/S. Om Trading Co vs Cc, New Delhi (Icd Tkd) on 25 February, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Customs Appeal No. 58921/2013-Cus[SM]
[Arising out of Order-In-Appeal No. CC(A) Cus/254/2013 Dated 26.03.2013 passed by CCE, New Delhi]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Om Trading Co Appellant
Vs.
CC, New Delhi (icd Tkd) Respondents
Appearance:
Shri Ravinder Singh, Advocate for the Appellant Shri M.S.Negi, AR for the Respondent Coram: Honble Ms. Archana Wadhwa, Judicial Member Date of Hearing: 25.02.2014 FINAL ORDER NO. 50857 /2014_ Per Ms. Archana Wadhwa:
After hearing both the sides, I find that the appellant filed Shipping bill declaring the goods to be exported as empty bags, whereas the same were found to be printed bags having marking of Indian Basmati Rice. On being told that the printed bags with the marking of Indian Basmati Rice are restricted item for the purpose of export in terms of the Foreign Trade Policy and the Notification issued their under by DGFT, the appellant sought to withdrawal the export consignment.
2. However, the original adjudicating authority vide his impugned order confiscated the same and allowed release on payment of redemption find of Rs. 2,00,000/- (Two lakh) and penalty of Rs. 1,00,000/- (One lakh).
3. The order of the original adjudicating authority was challenged before Commissioner (Appeals), who further reduced the redemption fine to Rs. 95,000/- and penalty to Rs. 95,000/-.
Hence the present appeal.
4. Learned advocate pleads that the consignment was offered for export under a good faith that the same can be exported and they were not aware of the above restriction. In such a scenario, their being no malafide on the part, redemption find may be further reduced and penalty be set aside.
5. I find that the Commissioner (Appeals) while reducing the penalty has held as under:
I have carefully gone through the said order, the grounds of the Appeal and the oral submissions. I find that the facts of the case as stated above are undisputed and therefore the violation of the referred provisions stand established. The appeal is, primarily, filed for reduction of Redemption Fine and Penalty imposed under the relevant provisions and in any case not with reference to the merits of the case. Keeping in view the specific facts of the case and that the goods; that there is no issue of margin of profit; and that the claim of the Appellant is that they are first time exporting such goods, I am of the considered view that Rs. 95,000/- as Redemption Fine and Rs. 95,000/- as Penalty under the referred provisions would suffice the interests of justice.
6. The lower authorities are not imputing any malafide to the appellant. Admittedly, it is a case of being non-aware of the restriction imposed in terms of Notification dated 21.02.2012 issued by DGFT. It was also first export sought to be made by the appellant. Tribunal in the case of K.K. Imports & Exports Vs. Commissioner of Customs, Chennai 2009 (237) ELT 739 (Tri.-Chennai), while dealing with an identical situation, has held that in the absence of any willful effort to contravene any provision of the Act, penalty could not be imposed for technical or venial breach of statutory provisions. However, the Tribunal upheld the confiscation for such technical violation but reduced the redemption fine to Rs. 5,000/-
7. By following the above decision of the Tribunal and by taking note of the fact that there is no evidence on record so as to find the appellant guilty of contumacious conduct, I set aside the penalty and reduce the redemption find 10,000/-. The appeal is disposed of in above manner.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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