TaxTMI 
TaxTMI 
2010 (5) TMI 741
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....located at Jasai, 5 Km away from JNPT Custom House. 2.1 On 5-1-2007, the above said container bearing Customs Bottle seal No. 14793 was brought to CFS of CWC at Dronagiri for detailed examination in the presence of the exporter and the CHA. On examination, it was found that the actual gross weight of the goods was 7011 kgs, as against the declared weight of 9699.76 kgs. There was a difference of 2687.24 kgs. in the weight. As the goods were misdeclared with regard to weight of the consignment with intention to avail higher drawback than was due, they were seized after drawing representative samples. 2.2 On chemical examination of the representative samples, it was reported that the nickel content in all the samples fell in the range from 0.2% to 0.8%, which was much lesser than the nickel content of 8% and above, as declared in the shipping bills. There was also misdeclaration of nature of the goods to avail higher drawback. Survey of the marker value of the goods declared revealed that the FOB value declared for the goods i.e. Rs. 25,96,908.60 was reasonable and fair. 2.3 It was also found that the warehouse stuffing permission was granted, wherein the goods to be exporte....
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....the suppliers were made co-noticees in the impugned case and there was no admission of any of the parties. Hence, the confiscation of goods, imposition of redemption fine and penalties are not sustainable. He further submitted that in the case of Oriental Containers Ltd. v. Union of India reported in 2003 (157) E.L.T. 503 (Bom.), the Hon'ble High Court held that the partners are not party to the fraud and there was no mala fide intention on the part of the petitioners in importing the Tin Plate/Waste instead of Tin Plate Prime. In fact, the petitioners have paid to the foreign supplier the price of tin plate prime and in return got tin plate waste. The petitioners have paid the customs duty payable on tin plate prime. Under the circumstances, when the petitioners are innocent victims of the fraud played by the foreign supplier and the petitioners have suffered double jeopardy by paying the price and the duty payable on tin plate prime, on account of the fraud committed by the foreign supplier, the petitioners could not be held to be guilty of violating any of the provisions of the Act. He further submitted that in the case of Kirti Sales Corpn. Reported in 2008 (232) E.L.T. 151 (Tr....
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.... the appellant, or any statement of exporter or any body to show that the appellant had knowledge or information that the contents of 1030 bags were different from those described in the shipping bills. There is no confessional statement of the CHA or any statement of exporter alleging that the CHA knew the contents. If there was no corroborative evidence or statement of anybody alleging that the CHA had information, knowledge or connived in surreptitious export of the goods, penalty cannot be imposed. 3.4 Shri Anil Balani, learned Advocate appearing on behalf of Shri Harsh Srivastava, Apprising Officer, submitted that in the impugned order, the Commissioner has given finding in para 35 that appellant has not authority to examine the cargo and by doing so in an improper manner without due care and diligence, abetted the commission of the offence. In contrary to that he held in para 54 of the impugned order that no investigation was made hence, I extend the benefit of doubt to the officer. He submitted that when no proper investigation was done in the matter with regard to the role of the appellant, no adverse finding can be incorporated. He further submitted that the appellant h....
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....levant. 4.2 With regard to CHA he submitted that CHA is accountable for the action relating to his work and in this case, the goods have been found misdeclared. Hence, the CHA is liable for penalty. 4.3 With regard to the Apprising Officer, he reiterated the impugned order. 5. Heard. 6.1 On careful examination of the materials on record and hearing the arguments of all the parties, I find that it is a case of export of the consignment to avail duty drawback. In this case, the exporter did no verify the contents like weight and nature of the goods and filed the shipping bills. It is duty of the exporter to examine and verify the contents like weight and nature of the goods before exportation. The exporter cannot take excuse that the shipping bills have been filed on the basis of the invoices supplied by the supplier of the goods. The decisions relied on by the learned Advocate have dealt with the import of the goods, which are not relevant to this case. In the case of import, importer has to depend on the invoice/import documents. But in the case of export, the exporter is duty bound to export the goods as per specifications mentioned in the invoice and shipping bills. H....