Custom, Excise & Service Tax Tribunal
Shri Ketan D.Ruparel vs Commissioner Of Customs(Ep), Mumbai on 14 December, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal Nos. C/86742, 86743/17
(Arising out of Order-in-Appeal No.35 & 36(Adj-Exp)/2017/(JNCH)-Appeal-I dated 31.03.2017 passed by the Commissioner of Customs(Appeals-I), Mumbai-II.)
Shri Ketan D.Ruparel
M/s.NIMA Enterprises Pvt.Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs(EP), Mumbai
Respondent (s)
Appearance:
Shri C.M.Sharma, Consultant for the Appellant (s) Shri K.M.DSouza, AC(AR) for the Respondent CORAM:
Honble Mrs. Archana Wadhwa, Member(Judicial) Date of Hearing/Decision :- 14.12.2017 ORDER NO.
Per Mrs. Archana Wadhwa.
Both the appeals are being disposed of by a common order as they arise out of the same impugned order passed by the authorities below.
2. After hearing both sides duly represented by Shri C.M.Sharma, Consultant for the Appellant and Shri K.M.DSouza, AC(AR) for the Revenue, I find that M/s.Nima Enterprises Pvt.Ltd. is engaged in the export of spices and other such items. They filed a shipping bill dated 06.04.2009 declaring the various items for an FOB value of Rs.7,32,737.96. Examination of the goods to be exported revealed that appellant had declared the same only as (Chick Peas), whereas the same was also found to be brown Chick Peas, which are not permitted to be exported. Similarly the declared Basmati rice was found to be having a portion of the non-Basmati rice, which is also a banned item for export. The quantity of the Coriander Seeds, was found to be more than the declared quantity, by 10 bags.
The statement of Shri Ketan D. Ruparel, was recorded, wherein he admitted that he was aware of the fact that export of non-Basmati rice is banned.
3. On the above basis, proceedings were initiated against the appellants for confiscation of the goods in question and also for imposition of penalties on the exporting firm as also on the Director. The said show cause notice culminated into an order passed by the original adjudicating authority and upheld by Commissioner(Appeals). Vide their impugned orders, the brown Chick Peas as also non-Basmati rice was confiscated with option to the appellant to redeem the same on redemption fine of Rs.45,000/- and of Rs.35,000/- respectively. The 10 excess bags of coriander seeds were also confiscated with option to redeem the same on payment of redemption fine of Rs.20,000/-. In addition penalty of Rs.50,000/- was imposed upon the exporter and of Rs.25,000/- on the Director. Inasmuch as the said exports were under the DEPB scheme, the same was also rejected to the extent of Rs.12,133.09.
4. The ld.Consultant appearing for the appellant submits that they are mainly engaged in the export of spices and they were exporting the rice for the first time. They depended upon the opinion of the broker, who said that the rice in question was Basmati rice. Similarly in respect of Chick Peas, he submits that the appellant was not aware of the fact that black Chick Peas are banned for export. As regards the excess bags of Coriander seeds, he submitted that the same was as a result of inadvertent mistake and there was no intention to mis-declare the quantity. The ld.Consultant also submits that the total redemption fine is to the tune of Rs.1.20 Lakhs whereas the total value of the confiscated goods is to the extent of Rs.3.25 Lakhs. He submits that the said redemption fine has been fixed by the authorities without adverting to the margin of profit and is much on the higher side. He also submits that the imposition of penalty on the exporting firm as well as on the Director is not justified.
5. Countering the arguments ld.AR for the Revenue draws my attention to the statement of the Director indicating that he was aware of the banned export of black Chick Peas as also non-Basmati rice. The said statement has not been retracted by the Director and is reflective of their intention to export the banned items. As regards the quantum of redemption fine he submits that the same is reasonable and should not be interfered with.
6. After appreciating the submissions made by both the sides I find that admittedly there was mis-declaration in respect of description as also quantity of the goods. There is no explanation by the appellant as to why the Chick Peas were not declared as brown Chick Peas by them and as to why non-Basmati rice was declared as Basmati rice. The statement of the Director also points out to the said fact. Further no explanation is coming forward from the appellant as regards the excess quantum of Coriander seeds. In such a scenario I am of the view that the confiscation of the goods in question is justified.
7. However, as regards the quantum of redemption fine I find that the same is to an extent of 30% and there is no discussion about the margin of profit in the said goods. In the absence of the same, the quantum of redemption fine seems to be on the higher side and accordingly the same is reduced to 20% in toto of the value of the goods. However, the penalty imposed upon the exporting firm does not seem to be on the higher side. The same is accordingly maintained.
8. As regards the penalty on the Director, I find that the exporting firm has already been penalized and as such separate imposition of penalty on the Director would not be justified. The same is accordingly set aside and his appeal is allowed.
Both the appeals are disposed of in above manner.
(Pronounced and dictated in the open court.)
SD/
(ARCHANA WADHWA) MEMBER(JUDICIAL)
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Appeal Nos.C/86742, 86743/17