M/S. Fortune Impex, M/S. Chawla ... vs Commissioner Of Customs, Calcutta on 3 July, 2001
5. The learned Counsel, further, submitted that the goods tendered for examination were as per description viz. QTMs; that it is immaterial that the same were not in working condition; that mere fact that the goods were old/used/repaired/working QTM would by itself not render them liable to confiscation when the goods were not exported and the buyer had not refused to accept the same .He also mentioned that the fact remains that the goods were not shipped and the G.R. Form was not negotiated and accordingly provisions of Section 113(d) of the Customs Act are not invocable (though not specified in the show cause notice); that the question of invoking Sec. 18(1) of FERA (again not invoked in the notice) would not arise in as mush as the G.R. Form was not negotiated and there is no shortfall or non realisation of the foreign exchange. He contended that the Adjudicating Authority was not competent to invoke the provisions of Section 113(d) of the Customs Act and Section 8(1) of the FERA when the same were not specifically referred to and dealt with in the show cause notice and there was no notice to the appellant in this regard; the show cause notice itself was not sustainable in view of the fact that it was vague and did not specify the provisions of the Customs Act and the FERA. He relied upon the Article written by him and reported in 1996 (87) ELT A 16 in the context of the decision in Dimple overseas Ltd., 1995 (76) ELT 48 (SC). He also relied upon the decision of the Larger Bench of the Tribunal in the case of J.G. Exports vs. C.C., 2000 (40) ELT 755 wherein the was held that overvaluation of export consignment in shipping bill was not violative of Section 18(1)(a) of FERA and could not be brought under the provisions of Section 11 of the Customs Act; that the Tribunal in this case upheld the decision in Shilpi Export vs. C.C., 1996 (13) RLT 39; that this was the position as on the date of the last hearing on 10.11.2000 and ,accordingly, following the decision of the Larger Bench, the appeal ought to have been allowed even on merits; that, thereafter, on 1.12.2000 a still Larger Bench of the Tribunal in Om Parkash Bhatia vs. C.C., 2001 (127) ELT 81 has overruled the decision in J.G. Exports by distinguishing the decision of Shilpi Exports (approved by the Supreme Court). the learned Advocate mentioned that the decision in Om Prakash Bhatia is not binding overlooking the decisions in J.G. Exports, Shilpi Exports and Dimple Overseas Ltd. He also contended that numerical Strength of a Bench cannot decide its authority when the statute does not provide for overruling the judgement merely on the basis of the numerical strength of the Benches constituted for disposal of the cases.