Custom, Excise & Service Tax Tribunal
M/S Krish Exports vs Cc (Port), Kolkata on 31 August, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL KOLKATA Customs Appeal No. 75517 of 2014 (Arising out of Order-in-Original No. KOL/CUS/PORT/05/2014 dated 16.01.2014 passed by the Commissioner of Customs (Port), Kolkata) DATE OF HEARING : 25.08.2017 DATE OF DECISION : 31.08.2017 M/s Krish Exports . Appellants (Rep by Sh. B.N. Pal, Adv.) VERSUS CC (Port), Kolkata . Respondent
(Rep. by Sh. S.N. Mitra, DR) CORAM : HONBLE MR. JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE MR. V. PADMANABHAN, MEMBER (TECHNICAL) FINAL ORDER NO. FO/C/A/77099/2017 PER V. PADMANABHAN :
The present appeal is filed by the assessee-Appellants against the Order-in-Original No. KOL/CUS/PORT/05/2014 dated 16.01.2014 passed by the Commissioner of Customs (Port), Kolkata.
2. The brief facts of the case are that, the Directorate of Revenue Intelligence (DRI) gathered intelligence about certain fraudulent import containers in which attempts were being made to mis-declare export containers with a view to fraudulently claim the drawback. DRI undertook investigations into twelve shipping bills which were filed at Haldia Dock by the Appellants (six shipping bills) and by M/s Tara India (six shipping bills). When the goods entered for export were examined, as against the declared leather items, the goods were found to be old and used items of negligible commercial value. As such, DRI found evidence that the export goods were mis-declared with a view to claim fraudulent drawback. After issuance of the show cause notice, the impugned order came to be passed against which the export goods covered by all the twelve shipping bills were ordered for confiscation and were allowed to be redeemed on payment of redemption fine. For the six shipping bills filed by M/s Krish Exports, a redemption fine of Rs. 50 lacs was imposed. The adjudicating authority also denied the claim of duty drawback on the fraudulent exports and further imposed a penalty of Rs. 25 lacs on the Appellants, M/s Krish Exports under Section 114 as well as Rs. 30 lacs under Section 114 AA of the Customs Act, 1962. In the present appeal, the levy of redemption fine and penalties have been challenged.
3. With this background, we have heard Shri B.N. Pal, learned counsel for the Appellants and Shri S.N. Mitra, learned DR for the Revenue.
4. The main argument advanced on behalf of the Appellants is that, they obtained an IEC Code in the year 2010 with the intention of doing export/import work. However, they never carried out any such activity and their IEC Code was used without authorization by other persons for filing the export related documents. They have also lodged a police complaint before the Hare Street Police Station alleging that their IEC Code number was utilized by others without their authority. Accordingly, he submitted that they have no part to play in the fraudulent export, but were the victims of fraud played by somebody else.
4. The learned DR for the Revenue justifies the impugned order. He argued that the investigation carried out by DRI establishes that the Appellants had filed the shipping bills and mis-declared leather garments with a view to claim fraudulent drawback. Consequently, he justifies the penal action against the Appellants.
5. After hearing both sides and on perusal of the material available on record, we find that out of the total twelve shipping bills which were investigated by DRI in the present case, six shipping bills were filed by M/s Krish Exports, the Appellants in the present case. In the documents, the export goods were declared to be leather jacket, waist coat, shoes, skirt, pant etc., but, on examination of the goods, it was found to be old and used items of negligible or no commercial value. The goods were further found not to match with the documents. Hence, mis-declaration on the part of the Appellants with a view to claim huge amount of drawback fraudulently stands established. The adjudicating authority has ordered confiscation of the export goods in terms of Section 113(i) of the Customs Act, 1962 which is fully justified in our view in the present case. The redemption fine imposed under Section 125 amounting to Rs. 50 lacs for redemption of certain goods also is fair and appropriate in our view and merits no interference.
6. The argument advanced by the Appellants mainly is that, their IEC Code no. has been mis-used by other persons for filing the export documents without their knowledge and authorization. Accordingly, they have sought to dis-associate themselves from the fraudulent export consignment.
7. From the record of the case, we find that the investigating Officers have interrogated Shri Krishnendu Dutta, Proprietor of M/s Krish Exports, and recorded his statements more than once. However, in the statement, Shri Krishnendu Dutta has admitted to have given this IEC details to his acquaintance Shri Kuntal Dutta for using the same by Shri Manish Singh of M/s Tara India qua export. He has further admitted the fact that he had done the above act for monetary consideration. It is further on record that bank account number of M/s Krish Exports, as stated by Shri Krishnendu Dutta in his statement, was the same account number declared in the export documents of M/s Krish Exports. If the DRI authorities have not intercepted the goods prior to export, the fraudulent drawback amounts would have been received in the account of M/s Krish Exports. The investigations undertaken by DRI have established that Shri Manish Singh of M/s Tara India was the kingpin in the export fraud.
8. In view of the above discussions, we are of the view that the penalties imposed on M/s Krish Exports under Section 114 as well as 114AA of the Customs Act, 1962 are justified and merit no interference.
9. In view of the above, the impugned order is upheld in relation to the findings against M/s Krish Exports and the appeal filed by the Appellants is dismissed.
(Pronounced in the open court on 31.08.2017) \ (V. PADMANABHAN) MEMBER (TECHNICAL) (JUSTICE (Dr.) SATISH CHANDRA) PRESIDENT Golay 1 A.No. C/75517/14