TaxTMI 
TaxTMI 
2015 (11) TMI 503
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....and found them to contain "embroidered sarees, hemmed and ready to use." The examination covered five other bills filed at the same time totally valued at 3828937.78. For the purposes of DEPB, the goods as described in the shipping bills would be classified as fabric lengths at serial no.43A of the schedule with eligibility at 8.2%. "Sarees", on the other hand, are entitled to only 6.6% being classifiable as "made-ups" at serial no. 43B and thus entitled to DEPB credit of Rs. 252209.89 against the claimed amount of Rs. 313972.87. Consequent upon the detection of the misdeclaration purportedly to secure undue benefit of duty-free imports, proceedings were proposed to be initiated for confiscation of the goods and imposition of penalty. The appellant waived the right to be issued with show cause notice under section 124 of Customs Act, 1962 and the original authority, Commissioner of Customs (Export), Air Cargo Complex, Mumbai, adjudicated the matter after hearing the exporter and Customs House Agent. In the impugned order CC/PMS/50/2008 ADJACC dated 17 th November 2008, the export was permitted subject to DEPB entitlement being restricted to 6.6%. The goods, held to be liable for co....
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....yag Exporters (P) Ltd [2003 (155) ELT 4 (SC)], Suresh Enterprises vs Commissioner of Customs, Mumbai [2005 (179) ELT 466 (Tri-Mum)], Suresh Jhunjhunwala v Commissioner of Central Excise & Customs, Hyderabad [2005 (183) ELT 60 (Tri-Mum)], Trustworth Enterprises v Commissioner of Customs, Tuticorin [2008 (228) ELT 201 (Tri-Chennai)], Vishwajyoti Impex v Commissioner of Customs (Adj), Mumbai [2009 (238) ELT 267 (Tri-Mum)], Advance Exports v. Commissioner of Customs, Kandla [2007 (218) ELT 39 (Tri-Ahd)], Commissioner v, Advance Export [2010 (256) ELT A20 (SC)], Kobian ECS India Pvt Ltd. vs. Commissioner of Customs, Mumbai [2003 (157) ELT 662 (Tri-Mumbai), Kanhaiya Exports (P) Ltd v. Commissioner of Customs (Port), Kolkata [2006(204) ELT 295 (Tri-Kol)], Hewlett Packard India Sales (P) Ltd v Commissioner of Customs, Bangalore [2009 (241) ELT 545 (Tri-Bang), Commissioner v Hewlett Packard India Sales (P)_ Ltd [2005 (316) ELT A32 (Kar)], Laxman Overseas v Union of India [2010 (252) ELT 513 (Del)], Hindustan Aeronautics Ltd v Commissioner of Customs, Bangalore [2010 (258) ELT 534 (Tri-Bang)], Kanji Shavji Parekh (Cal) P Ltd v Appraiser Customs, Postal Appraising Deptt [2010 (262) ELT 83 (Ca....
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....is Act or any other law for the time being in force." Section 11 of Customs Act, 1962 empowers the Central Government, by notification, to prohibit, absolutely or conditionally, the import or export of any goods. Section 2(33) of Customs Act, 1962 defines "prohibited goods" to be any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force. 6.2 We also note that DEPB scrip is issued by the field offices of the Director General of Foreign Trade on the basis of value and description of export goods in accordance with the scheme envisaged in Chapter IV of the Foreign Trade Policy for the relevant period. The Foreign Trade Policy is notified in exercise of powers vested with the Director General of Foreign Trade under Section 5 of the Foreign Trade (Development & Regulation) Act, 1991. We observe that, in relation to exports, a declaration under section 50 of Customs Act, 1962 in the form of shipping bill is filed before the goods are brought into the customs area for examination and clearance thereof as per section 51. Thereafter goods are loaded on the designated conveyance in accordance with its availability ....
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.... with and it was held as not warranted. It is worth noting that till May 2003 many of the clauses in section 113 were liable to be invoked only when export goods were dutiable or prohibited; "prohibited" in this context was interpreted by the Tribunal with reference to section 2(33) of Customs Act, 1962 as being prohibited for import or export by the Foreign Trade Policy or by a specific notification under Section 11 of the Customs Act, 1962. The use of the word "prohibition" in other clauses of section 113 was also assigned the same meaning as prohibited. This appears to have been the consistent stand of the Tribunal that the Hon'ble Supreme Court did not find it necessary to interfere with. On behalf of the appellant-exporter, the learned Counsel would submit that reliance should not be placed on the decision of the Hon'ble Supreme Court in re Om Prakash Bhatia and other Tribunal decisions, notwithstanding that it was chronologically more recent of the two, because the review petition of Revenue for reconsideration of Prayag Exporters did not succeed despite drawing attention to the decision in Om Prakash Bhatia. 6.5 There can be no two view that adjudicating authoriti....
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....rovision, it is required to be established that attempt to export the goods was contrary to any prohibition imposed under any law for the time being in force. 8. Further, Section 2(33) of the Act defines "prohibited goods" as under :- "prohibited goods" means goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with." 9. From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either &#....
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....:- Xxxxxxxxxx 17. To the same effect, Rule 11 of the Foreign Trade (Development and Regulation) Rules, 1993 provides. This Rule is to be read along with Section 11(1) of the Foreign Trade (Development & Regulation) Act, 1992, which inter alia provides that no export or import shall be made by any person except in accordance with the provisions of this act, the rules and the orders made thereunder and the export and import policy for the time being in force. Rule 11 reads thus :- "11. Declaration as to value and quality of imported goods. - On the importation into, or exportation out of, any customs ports of any goods, whether liable to duty or not, the owner of such goods shall in the bill of entry or the shipping bill or any other documents prescribed under the Customs Act, 1962 (52 of 1962), state the value, quality and description of such goods to the best of his knowledge and belief and in case of exportation of goods, certify that the quality and specification of the goods as stated in those documents are in accordance with the terms of the export contract entered into with the buyer or consignee in pursuance of which the goods are being exported and....
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....ich the latter decision was brought on record as a ground for reconsideration. The review re-examined the original decision within a limited context and without a discussion of or express repudiation of Om Prakash Bhatia; mere dismissal of the review petition filed in re Prayag Exporters would not nullify applicability of Om Prakash Bhatia. The chronological juxtaposition of the two decisions in the respective civil appeals would accord a primacy to Om Prakash Bhatia. 6.9 Even without the benefit of chronological primacy, it is also seen that the decision in re Om Prakash Bhatia was arrived at after detailed consideration of the word "prohibition" in section 113(3) of Customs Act, 1962. Having discussed the mandates prescribed in the Foreign Exchange Management Act and the rules framed under the Foreign Trade (Development & Regulation) Act, 1962, it was held that these mandates and rules, if not complied with, amounted to goods being exported in contravention of prohibition under other laws and hence crystallizing the liability to confiscation under section 113(d) of Customs Act,1962. We would note that section 113(d) used the word "prohibition" whereas in clauses (c), (e), (f),....