TaxTMI 
TaxTMI 
2016 (1) TMI 876
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.... by the Commissioner of Customs (Export), JNCH, Nhava Sheva. As the facts and circumstances are similar, both sets of appeals are being disposed of by this common order. 2. The brief facts are that the exporter M/s Chawla Trading Co. had filed 3 shipping bills as follows: Shipping Bill NO. & Date No. of Containers Declaration of export Remarks 7126219 dt. 27.2.09 3 Basmati Rice LEO given and exported 7126230 dt. 27.2.09 3 -do- Detained. Back to town allowed on bond & Bank Guarantee- As rice not appeared to be Basmati. 7134204 dt. 2.3.2009 5 -do- Detained. Back to town allowed on Bond & Bank Guarantee. As rice not appeared to be Basmati. Thereafter, the balance 8 containers in t....
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....e as per declaration. They further, stated that stuffing of several export consignments were taking place simultaneously at different points, so it was not physically possible for them to remain at one point. Further, the exporter was a regular exporter and they did not notice anything adverse about them. Further, there was a load shedding in the area and stuffing continues till late hours and due to over burden of work, there was a possibility that the exporter might have taken advantage of the situation and manipulated/replaced the goods as in the same godown, there were locally saleable items including rice, always available in the same godown. As per the statement of the CHA- Mr. Mukesh D Thakkar, Proprietor of M/s M K Shipping, it was ....
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....ner on statements of the Customs Officers, who had stated that due to heavy workload they could not supervise loading through out, and further due to load shedding in the warehouse, hence there was possibility of manipulation. Relying on the same, the learned Commissioner held that the exporter have tried to export non-basmati rice, as basmati rice. 2.2 So far the examination as to test report is concerned, the learned Commissioner relies on the Addendum to the show-cause notice dated 25.2.2010, wherein it is stated that the samples drawn on 23/24.3.2009 were forwarded to Chief Chemical Examiner, Dy. Chief Chemist on 21.8.2009 and the test report has been received on 27.8.2009, which states that "each of the three samples is in the form ....
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....erein this Tribunal has held that no corrigendum or addendum to show-cause notice can be issued after receipt of reply to the notice or the original show-cause. (ii) Vide DGFT's Policy Circular No. 33/08, have been brought on record, which prescribes that samples drawn be sent for analysis to 'Agmark Testing Centre'. As such, the test report is also not reliable for not following the prescribed procedure. (iii) Although the samples were drawn from both the shipping bills, sample of only one shipping bill has been tested and that too after delay of 5 months, from the Laboratory, which is not a prescribed laboratory and as such, the report is not reliable. DGFT Policy Circular No. 33/08 refers to earlier Notification No. 39 date....
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....s such the Commissioner has erred in holding the goods liable to confiscation. Accordingly, the impugned order is fit to be set aside. 4. In the appeal of the Revenue, it is contended that the rice under export is rightly held liable to confiscation as the appellant have failed to produce the registration of contract of export with the "Agricultural and Processed Foods Development Authority -APEDA". It is further urged that the export of non-basmati rice has been prescribed by DGFT's Notification No. 38/07 and accordingly, the goods under export were fit for absolute confiscation and as such the learned Commissioner have erred in not confiscating the consignment absolutely and giving option to redeem. 4.1 Further ground raised is ....