TaxTMI 
TaxTMI 
2010 (12) TMI 85
X X X X Extracts X X X X
X X X X Extracts X X X X
.... before the goods were exported. Apparently, the Commissioner of Customs (Export) has not so far cared to answer the crucial queries put by the JDR. In this scenario, adverse inference will be raised against the department. Accordingly, I would like to proceed on the premise that the appellant was not required by the proper officer of Customs to execute any bond or undertaking before the goods were cleared for export. 2. Three consignments of manmade fabrics of 100% polyester filament were presented for export under shipping bills wherein the FOB values and GSMs of the goods were declared as shown below:- Sr. No. Shipping Bill No. & Date FOB value (Rs.) Declared GSM 1. 4635120 / 29.9.2006 13,38,073.00 110-180 2. 4658444 / 9.10.2006 6,21,661.70 110-180 3. 4714924 / 1.11.2006 22,20,128.00 130 +/ 10% Total: 41,79,862.70 The shipping bills were filed under DFIA (Duty-Free Import Authorisation) Scheme. The DFIA licences in respect of the first and second consignments permitted export of 100% polyester fabric ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellant has, apart from reiterating the grounds of this appeal and the further submission dated 9.11.2010, advanced certain legal arguments. It is submitted that, as the goods were not available for confiscation, no fine could have been validly imposed by the adjudicating authority. In this connection, the learned counsel has relied on a plethora of decisions including Shiv Kripa Ispat Pvt. Ltd. vs. CCE, Nasik 2009 (235) ELT 623 (Tri.-LB), wherein it was held by a Larger Bench of this Tribunal that Section 125 of the Customs Act was applicable only in those cases where goods under import or export were allowed to be cleared under bond or other security furnished by the importer/exporter. I have heard the learned JDR also on this aspect. The goods in question were allowed to be cleared for export without requiring the exporter to furnish any bond or undertaking. They were not physically available for confiscation when the impugned order was passed. On these facts, the Larger Bench decision is squarely applicable and, consequently, the fine imposed by the Commissioner in lieu of confiscation of the goods is liable to be set aside. It is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat, in the absence of any order of confiscation of goods under import, there could not be any imposition of penalty under Section 112 of the Customs Act. In that case, though the show-cause notice proposed confiscation in addition to levy of penalty, no such order of confiscation was made at all and only penalty simpliciter was imposed. Apparently, the order of adjudication, in that case, was challenged before the Board and the Boards decision was taken to the Revisionary Authority (Government of India) and the matter ultimately stood transferred to the Tribunal. The Tribunals order came to be the subject-matter of a reference to the High Court. One of the questions referred to the High Court was Whether the Tribunal was correct in setting aside the order after holding that an imposition of penalty under Section 112 could not be legal when there was no finding in regard to the liability of the goods to confiscation. This issue was answered in the negative against the department by the Honrable High Court. Therefore, the argument of the learned counsel is that, in the absence of liability of the goods to confiscation, there can be no penalty unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e that the appellant has not argued to the contra. The Chemical Examiners report furnished GSM values below the declared GSM values. The report has not been contested by the appellant. Before the adjudicating authority, they raised a feeble contention that there was bound to be 10% error on the part of the Chemical Examiner, but this contention was rightly rejected by the Commissioner. Had it been the case of the appellant that the Chemical Examiners report was unacceptable, they could have asked for retest of the samples. Be that as it may, the GSM declared by the appellant was much higher than the actuals and consequently, the FOB values were also bound to be higher. In this scenario, I am not in a position to fault the view taken by the Commissioner on the question whether the appellant had misdeclared any particulars in the shipping bills. The appellant did misdeclare the GSM values thereby attracting Section 113(i) of the Customs Act. In other words, the appellant, by their commission, rendered the goods liable to confiscation. I do not think that the absence of the goods would, in any way, detract from this position. ....