TaxTMI 
TaxTMI 
2010 (1) TMI 515
X X X X Extracts X X X X
X X X X Extracts X X X X
....1/88 ETC? when as per this clause if in any case it is found that the value, sort, specification, quality and description of the goods to be exported are not in conformity with the declaration of the exporter in this respect or quality and specification of such goods are not in accordance with the terms of export Contract, the export of such goods shall be deemed to be prohibited? (2) Whether the appellate Tribunal was correct in law in giving a liberal interpretation to the words value, sort, specification, quality and description use in clause 3 (3) of Export Trade Control Order (1/88 ETC) when the words weight are not incorporated in this clause 3(3) of the Export Trade (Control) Order? (3) Whether in the facts and circumstances of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iscation. 5. Aggrieved by the above order, appeals were preferred before the CEGAT contending that clause 3(3) of the above ETC order does not bring within its sweep shortage in weight as such the export of goods will not be prohibited one even if the shortage in weight is noticed while exporting goods. Such goods would not be liable to be confiscated and no penalty shall be leviable. 6. The CEGAT after hearing the parties to the appeal did not find favour with the submission made. The CEGAT held that the objective of the above provision is to prevent or prohibit export of goods which did not tally in material particulars with the declaration made and went on to hold that the words value, sort, specification, quality, description must....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er specified in Schedule II. (2) Notwithstanding anything contained in sub-clause (1) goods specified in Schedule III may be exported on fulfilment of the terms and conditions specified therein. (3) If in any case, it is found, that the value, sort, specification, quality and description of the goods to be exported are not in conformity with the declaration of the exporter in those respects or the quality and specification of such goods are not in accordance with the terms of the export contract, the export of such goods shall be deemed to be prohibited. 10. Mr. Doiphode submits that reading the aforesaid clauses, that are concerned difference in weight by itself cannot be a ground to hold that the goods are deemed to be prohibited....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n relation to the fixation of rate of drawback under Section 75; He submits that the text from the pre amended and amended provision if considered then even if there is difference in weight, the goods cannot become prohibited goods because this aspect is sought to be covered under amended provision which was absent in unamended section. In support of this submission Mr. Doiphode relied upon the judgment of the Supreme Court in the case of RIB Tapes (India) Pvt. Ltd. v. Union of India - 1986 (26) E.L.T. 193 (S.C.), wherein the Supreme Court had an occasion to consider the difference between original Section 111(m) of the Customs Act and the amended text thereof. He thus prayed that the order of the Tribunal is based on erroneous assumptio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... correspond in any material particular with any information furnished by the exporter under this Act in relation to the fixation of rate of drawback under Section 75. Thus, when the words do not correspond in any material particular are not present in clause 3(3) of Export Trade (Control) Order it cannot be said that when there is a difference in weight clause 3(3) of Export Trade (Control) Order would be attracted, when the words weight or do not correspond in any material particulars are conspicuously absent in clause 3(3) of Export Trade (Control) Order or Section 1134(d) of Customs Act, 1962 at the relevant time when exports were made in July/August, 1993 . 16. The Tribunal has interpreted that the objective of the introduction of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....de (Control) Order. 19. The Apex Court had an occasion to consider more or less similar question in the matter of RIB Tapes and another v. Union of India reported in 1986 (26) E.L.T. 193 (S.C.). Prior to 1973 Section 111(m) of Customs Act, 1962 read as under : any dutiable or prohibited goods which do not correspond in material particular with the entry made under this Act..... after amendment by Act 36 of 1973 the provision reads as under : in respect of value or in any other particular with the entry made under this Act..... Act 36 of 1973 was amended to include value and other material particulars. The Supreme Court held that difference in value could not be said to be a difference in material particulars within the meanin....