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of <h1>Tribunal Upholds Confiscation & Penalties, Reduces Individual's Fine</h1> <h3>FORTUNE IMPEX Versus COMMISSIONER OF CUSTOMS, CALCUTTA</h3> FORTUNE IMPEX Versus COMMISSIONER OF CUSTOMS, CALCUTTA - 2001 (138) E.L.T. 556 (Tri. - Kolkata) Issues Involved:1. Confiscation of goods u/s Customs Act read with Foreign Exchange Regulation Act (FERA).2. Imposition of penalty u/s Customs Act.3. Jurisdiction of the Commissioner of Customs.4. Violation of principles of natural justice.5. Bona fide mistake in dispatching defective goods.6. Misdeclaration of goods.7. Applicability of Larger Bench decisions.Summary:1. Confiscation of Goods:The primary issue was whether the goods presented for export were liable for confiscation u/s Customs Act read with FERA. The Commissioner of Customs confiscated the goods u/s 113(d) and (i) of the Customs Act read with Sections 18(1) and 67 of FERA, with an option to redeem on payment of a fine of Rs. 80,000/-.2. Imposition of Penalty:Penalties were imposed on several appellants, including M/s. Fortune Impex and M/s. Chawla Enterprises Pvt. Ltd., for attempting to export very old/used/broken/non-working Q.T.M. of clocks under the DEEC Scheme. The Commissioner exonerated two customs officers, Shri A.K. Kothari and Shri P.S. Upadhyay.3. Jurisdiction of the Commissioner:The appellants argued that the Commissioner lacked jurisdiction as the value of the goods was Rs. 80,000/-. However, the Tribunal upheld the Commissioner's jurisdiction, noting that the declared value was Rs. 29,88,500/-, which is beyond the competence of the Assistant Commissioner.4. Violation of Principles of Natural Justice:The appellants contended that non-production of the shipping bill and denial of cross-examination of 26 persons violated principles of natural justice. The Tribunal found no violation, noting that the shipping bill was lost and the contents of the cartons were undisputed. The Tribunal also held that cross-examination is not an absolute right and must be justified.5. Bona Fide Mistake:The appellants claimed that defective goods were dispatched by mistake. The Commissioner rejected this, noting that the goods were sent over eight days, making a consecutive mistake unlikely. The Tribunal agreed, finding no evidence to support the claim of a bona fide mistake.6. Misdeclaration of Goods:The Tribunal found that the goods were misdeclared, with a declared value of Rs. 29,88,500/- against an actual value of Rs. 80,000/-. The Tribunal held that non-shipment and non-negotiation of the G.R. Form were immaterial to the offense.7. Applicability of Larger Bench Decisions:The Tribunal followed the Larger Bench decision in Om Prakash Bhatia, which held that over-invoicing of goods for exportation is an offense under the Customs Act. The Tribunal emphasized judicial propriety in following Larger Bench decisions.Conclusion:The Tribunal upheld the confiscation of goods and penalties imposed on M/s. Fortune Impex and M/s. Chawla Enterprises Pvt. Ltd. The penalty on Shri Y.K. Gandhi was reduced to Rs. 25,000/-. Penalties on other appellants were set aside due to lack of evidence of their involvement in the misdeclaration.
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