Customs, Excise and Gold Tribunal - Delhi
Badri Prasad And Sons Pvt. Ltd. vs Collector Of Customs on 3 January, 1995
Equivalent citations: 1995(80)ELT624(TRI-DEL)
ORDER Gowri Shankar, Member (T)
1. These appeals are against the order of the Collector of Customs in Delhi, by which he has imposed penalty under Section 114 of the Customs Act, 1962 of Rs. 2,00,000/- on M/s. Badri Prasad & Sons Pvt. Ltd. and Rs. 25,000/- on M/s. Om Tour & Travel Pvt. Ltd.
2. The facts leading to the Collector's orders are briefly this. M/s. Badri Prasad & Sons had filed a shipping bill at the Indira Gandhi International Airport for export of hosiery fabrics with the gross weight of 6841 kgs. Subsequent to the shipping bill having been passed, when the goods were received by the carrier M/s. Thai Airways, it amended the weight in the airway bill from 6841 kgs. to 2770 kgs. This amendment is stated to have been made as a result of actual weighment of the goods. Subsequently, the Collector came to know about the change in the weight, and carried out investigation. On the basis of this investigation, show cause notices were issued among others to M/s. Badri Prasad & Sons, the exporter and M/s. Om Tour & Travel Pvt. Ltd. The latter was a freight broker whose services the exporter availed of. After considering their replies and hearing them, the Collector has passed the order in question.
3. We have heard Shri L.P. Asthana for M/s. Badri Prasad & Sons Pvt. Ltd., Shri N. Ramanathan, Consultant for M/s. Om Tour & Travel Pvt. Ltd. and Shri Sanjeev Sachdeva, SDR.
4. We do not consider it necessary to go into the question as to whether the consignment actually weighed 6841 kgs. as claimed by the exporter or 2770 kgs. as confirmed by the Collector for the reason that the appeals can be disposed of on a basic point of law. The show cause notice noted that the object of misdeclaration of the weight [of] the consignment was to obtain an import licence in terms of Appendix 21 of the Import Policy in force for duty free import of 6841 kgs. of polyester yarn, a quantity which the exporter would not have been entitled to import if the weight of the export consignment were 2770 kgs. The notice stated that the export consignments would have been liable for confiscation under sub-sections (h) and (i) of Section 113 of the Act, and therefore, the exporter would be liable for penalty under Section 114. The Collector has confirmed this. Sub-section (h) of Section 113 renders (sic) liable for confiscation "Any dutiable or prohibited goods which are not included or are 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". Sub-section (i) of Section 113 renders liable for confiscation : "Any dutiable or prohibited goods [or goods ensured for exportation under claim for drawback] which do not correspond in any material particular with the entry made under this Act, or in the case of baggage with the declaration under Section 77 respect thereof". Therefore, any goods whose confiscation is ordered under any of these sub-sections must be either prohibited or dutiable or if Sub-section (i) is invoked, is sought to be exported under claim for drawback by the exporter. The claim made by Shri Asthana that the goods in question did not fall in any of these categories was not challenged by the Departmental Representative. It appears that in the proceedings before the Collector this was not argued by the exporter. On the contrary, it appears to have been argued that the goods were prohibited. The Collector has also accepted that the goods are prohibited. Neither the show cause notice nor the order of the Collector indicate the provision of law under which export of fabric was prohibited. When asked to counter Shri Asthana's argument in this regard, the DR could not explain under what law the export of goods was prohibited. He merely reiterated the Collector's view. Since it has not been shown that the goods were prohibited for export and there has never been a claim that they were dutiable or that the exporter claimed drawback on them, the confiscation of the goods is not sustainable. Therefore, imposition of penalty on the exporter under Section 114 also is not justifiable. Since the Collector has imposed a penalty on M/s. Om Tour & Travel Pvt. Ltd. for the reason that it was up to this firm to ensure that the weight shown in the shipping bill was amended, the penalty imposed on it will have to be set aside.
5. In the result, both these appeals are allowed. The Collector's order insofar as it relates to both the appeals is set aside.