2018 (7) TMI 450 - AT - Customs

Tribunal upholds penalty for violating Foreign Trade Policy on onion exports, reduces amount for fairness

R.A. Enterprises, Maa Tara Exim Pvt. Ltd. Versus Commissioner of Customs (Prev.), Kolkata

The Tribunal upheld the penalty for violating the Foreign Trade Policy regarding onion exports but reduced the penalty amount to &8377;10,000 in each ... Penalty u/s 117 of CA, 1962 - export of onion to Bangladesh under valid Bill of Export - N/N. 82(RE-2013)/2009-14 dated 17.06.2014 - Held that:- The penalty is imposable for attempt to export improperly. Since the amended notification had come only on 17.6.2014 there has been a violation of the provisions of the Customs Act and maximum penalty has been imposed under Section 117 - the penalty imposed is quite excessive and the same is reduced to ₹ 10,000/- in each case to meet the ends of justice - appeal disposed off. Issues Involved:Violation of Foreign Trade Policy regarding export of onion under Minimum Export Price (MEP) conditions and imposition of penalty under the Customs Act, 1962.Analysis:Issue 1: Violation of Foreign Trade PolicyThe case involved the export of onion to Bangladesh under a valid Bill of Export. The appellant argued that at the relevant time, the Export Policy for Onion was 'Free' under the Foreign Trade Policy, 2009-2014. However, a subsequent notification dated 17.06.2014 imposed a Minimum Export Price (MEP) of US$300 per MT FOB on onions. The Commissioner (Appeals) held that the appellant exported onions in violation of the Foreign Trade Policy by not adhering to the MEP, making the export goods liable for confiscation under Section 113(d) of the Customs Act, 1962. The Commissioner (Appeals) also noted that the penalty under Section 114 of the Act was applicable rather than Section 117, citing a Supreme Court judgment to support this interpretation.Issue 2: Imposition of PenaltyThe lower authority imposed a penalty under Section 117 of the Customs Act, 1962. However, the Commissioner (Appeals) disagreed with this and imposed the penalty under Section 114 of the Act, upholding the penalty on the appellant for violating the Foreign Trade Policy. The appellant contended that penalty under the Customs Act was not applicable for violations of the Foreign Trade (Development & Regulation) Act, 1992. The Commissioner (Appeals) rejected this argument and upheld the penalty imposed by the lower authority, citing that the wrong provision cited by the lower authority did not invalidate the order.Final JudgmentAfter hearing both sides and examining the appeal records, the Tribunal found that the Proforma Invoice was raised before the notification imposing MEP, while the packing list was issued after the imposition of conditions on onion export. The Tribunal acknowledged that the violation was not deliberate but still imposed a penalty under the Customs Act, 1962. The Tribunal reduced the excessive penalty imposed by the Commissioner (Appeals) to &8377; 10,000 in each case to ensure justice was served. The appeals were disposed of with this modification.In conclusion, the Tribunal upheld the penalty for violating the Foreign Trade Policy regarding onion exports but reduced the penalty amount in consideration of the circumstances.