Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Customs vs Parker Industries on 17 March, 2006
ORDER M.V. Ravindran, Member (J)
1. This appeal is filed by the revenue against the order-in-original dated 6-10-2004 that dropped the proceedings initiated against the respondent.
2. The relevant facts that arise for consideration are that the respondent exported Hand Tools valued at Rs. 2,34,75,035/- under DEPB scheme vide 13 different shipping bills. Out of total value as indicated above the respondent could not bring in Foreign exchange of Rs. 1,79,61,955/- and admitted to the fact that they had forged the BRCs and availed the benefit of DEPB. In some cases Foreign Exchange were subsequently realized. The authorities issued show cause notice to the respondent for confiscation of the goods exported and for imposition of penalty under Section 114 of the Customs Act, 1962. The main allegation of the department is that the respondent had not realized the Foreign Exchange as per the declaration filed by him and has forged the Bank Realization Certificates to avail ineligible benefits of DEPB based on these forged BRCs. The adjudicating authority has dropped the proceedings initiated against the respondents and hence this appeal by the revenue.
3. None appeared for the respondent despite notice. Heard the learned DR and perused the records. The provisions of Section 113 of the Customs Act, 1962, govern the question of confiscation of the goods meant for export. The said provisions read as under:
SECTION 113. Confiscation of goods attempted to be improperly exported, etc. - The following export goods shall be liable to confiscation:
(a) any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods;
(b) any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under Clause (c) of Section 7 for the export of such goods;
(c) any goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported from a place other than a land customs station or a customs port appointed for the loading of such goods;
(d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;
(e) any goods found concealed in a package which is brought within the limits of a customs area for the purpose of exportation;
(f) any goods which are loaded or attempted to be loaded in contravention of the provisions of Section 33 or Section 34;
(g) any goods loaded or attempted to be loaded on any conveyance, or water-borne, or attempted to be water-borne for being loaded on any vessel, the eventual destination of which is a place outside India, without the permission of the proper officer;
(h) any goods which are not included or area in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under Section 77;
(i) any goods entered for exportation which do not correspond in respect of value or in any material particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77;
(ii) any goods entered for exportation under claim for drawback which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of drawback under Section 75;
(j) any goods on which import duty has not been paid and which are entered for exportation under a claim for drawback under Section 74;
(k) any goods cleared for exportation which are not loaded for exportation on account of any will ful act, negligence or default of the exporter, his agent or employee, or which after having been loaded for exportation are unloaded without the permission of the proper officer;
(1) any specified goods in relation to which any provision of Chapter IVB or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.
4. From the plain reading of the above section it is clear that the goods can be confiscated if the provisions of the Section 113 are violated. In this case the declaration made by the respondent is not questioned and there is no allegation that there was mis-declaration of value or description of the goods. The tenor of the show cause notice is that the respondent has forged the BRC to avail the ineligible benefit of DEPB scheme. The DGFT authorities are proceeding against this violation of the respondent separately and this itself would not make the export consignment liable for confiscation. To my mind the findings of the adjudicating authority is very clear and hence does not require any interference.
5. In view of the facts and circumstances as mentioned above, I do not see any reason for interfering with the order-in-original. The appeal by the revenue is dismissed.
(Operative part pronounced in the open Court.)