TaxTMI 
TaxTMI 
2017 (4) TMI 371
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....-Kandla Chamanlal Setia Exports Ltd Versus C.C.-Kandla Shree Mahavir International Versus C.C.-Kandla G D Overseas Versus C.C.-Kandla Lekh Raj Narinder Kumar Versus C.C.-Kandla Lal Mahal Limited Versus C.C.-Kandla C.C.-Kandla Versus Phoenix Comtrade Pvt Ltd Basic India Ltd Versus C.C.-Kandla Kunal Travels Versus C.C.-Kandla Bharat Umraniya Versus C.C.-Kandla Sunil Bhatia Versys C.C.-Kandla CL International Versus C.C.-Mundra C.C.-Kandla Versus Balgopal Shipping & Logistics C.C.-Mundra Versus Jaishree Exports ORDER Per Mr. Raju Appeals have been filed against confiscation and imposition of penalty by exporters of Rice. All these exporters had claimed that while they were exporting Basmati Rice, Revenue had claimed that the rice being exported by them is not Basmati Rice. Consequently, samples of product and were sent for testing. The Report received from Testing Agency, like Basmati Export Development Foundation, declared that the sample of the product do not qualify as Basmati Rice in terms of the specification prescribed by DGFT for export of Basmati Rice. Consequently, the material exported against the test bond was held to be liabl....
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....h Labh Agencies have filed following appeals against imposition of penalty:- C/44/2012 Vivek Shukla C.C.-Kandla C/56/2012 Santosh Kumar C.C.-Kandla C/62/2012 Vipul Sharma C.C.-Kandla C/72/2012 Subh Labh Agencies C.C.-Kandla 2. Ld. Counsel Shri P. D. Rachchh appeared for M/s. Jindal Arya Impex Pvt. Ltd., M/s. United Foods Pvt. Ltd and M/s Arya International. Ld. Counsel of these applicants argued that the product exported by them was described as Indian Pusa Basmati Steam Rice, or Indian 1121 Basmati Sella Rice. He argued that in the orders, it has been held that certain proportion of the export product was not basmati rice. He argued that since in the test reports, the proportion of rice found to be non basmati rice exceeded 20%, revenue held the goods to be prohibited and liable to confiscation. Ld. Counsel further argued that Notification No. 55 (RE-2008)/2004-2009 dated 05.11.2008 allows free export of Basmati Rice including Pusa Basmati 1121 (Dehusked), (Brown), semi-milled, milled both in either par-boiled or raw condition under export policy. He pointed out that the only restriction by description in the export of said product ....
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....ons against where penalties have been imposed. However, it is seen that arguments of appeals are similar. 3. Ld. AR for the Revenue argued that the case is squarely covered by the decision of Hon'ble High Court of Delhi in the case of Commissioner of Customs vs. Orion Enterprises 2015 (326) ELT 117 (Del.). He argued that the said decision deals with all the arguments raised by the appellants in this case. He further brought to our notice that Notification No. 68 dated 23.01.2003 has been issued in exercise of powers conferred by Section 17 of Export (Quality Control and Inspection) Act, 1963. The said notification describes what can be considering as Basmati Rice. He further brought to our attention that Notification No. 67 dated 23.01.2003 issued under Rule 11 of the Export (Quality Control and Inspection) Rules, 1964. He pointed that the said Notification prescribed as follows:- 4. Prohibits the export of Basmati Rice in the course of international trade, unless it conforms to the standard specifications applicable to it and is accompanied by a certificate of inspection issued by any of the Agencies established under section 7 of the Export (Quality Control and Inspec....
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....ural fragrance in both raw and cooked stages. Hence, neither these samples could be considered as samples of Basmati Rice (RUD No. 3). As the respondent was permitted only to export Basmati Parboiled in terms of the certificate issued in its favour, and since export of non-Basmati Rice was prohibited under the Export Policy in terms of Notification No. 55 (RE-2008) 2004-2009, a show cause notice was issued to the respondent on 26th May, 2011 by the CoC. 12. First, it requires to be noted that the Order-in-Original dated 21st October, 2011 of the Additional Commissioner of Customs refers to the fact that the certificate issued to the respondent for export mentions the commodity permitted to be exported as Basmati Parboiled 158248. The second important fact is that under the Export Policy in terms of the DGFT notification dated 5th November 2008, export of non-Basmati Rice is prohibited. The third factor is that in terms of the policy circular dated 30th September, 2008 again issued by the DGFT the Customs Department was to allow the export of Basmati Rice and Pusa 1121 non-Basmati Rice based on the parameters of the grain length, and grain length to breadth ratio. This circ....
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.... the legal position as explained by the Supreme Court in Commissioner of Central Excise, Delhi and Commissioner of Central Excise, Mumbai v. Damnet Chemicals Private Ltd. (supra) which hold that test reports given by chemical examiners are binding upon the Department in the absence of other acceptable evidence produced by it. 14. The contention of the respondent that the words other rice could mean other varieties of Basmati Rice is not borne out from the test reports in the present case. If the respondent wanted to show that the other rice found present to the consignment was also Basmati Rice then the burden was on the respondent to show that. As far as the Department is concerned, it was justified in proceeding on the strength of the test report that the presence of other rice, i.e. non-basmati rice, was more than the permissible maximum limit of 20%. Since the consignment was not entirely of Basmati Rice, it was not sufficient that the grains confirmed to the length and length/breath ratio prescribed for Basmati Rice in order to pass the test. The above decision is squarely applicable to these cases. Moreover, we find that Notification No. 67 dated 23.01.2003 issued....
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....o 90% of the total quantity. Thus, it is apparent that the exporters have deliberately misdeclared the product to avoid the prohibition under the policy. However, it is seen that the non-Basmati Rice found in the exporter varied from 23% to 90.2%. In view of above following appeals are dismissed. C/4/2009 R K Industries C.C.-Kandla C/35/2009 Mahavir Foods C.C.-Kandla C / 12283 / 2013 S K K Agro Pvt Ltd C.C.-Kandla C / 12284 / 2013 Rice India Exports P Ltd C.C.-Kandla C / 12333 / 2013 Ganeshom Cereals Pvt Ltd C.C.-Kandla C / 12334 / 2013 Ganpati Foods C.C.-Kandla C / 12523 / 2013 Jindal Arya Impex Pvt Ltd C.C.-Kandla C / 12524 / 2013 United Foods Pvt Ltd C.C.-Kandla C / 12525 / 2013 Jindal Arya Impex Pvt Ltd C.C.-Kandla C / 12526 / 2013 Arya International C.C.-Kandla C /12587 2013 Chamanlal Setia Exports Ltd C.C.-Kandla C /12836/2013 Shree Mahavir International C.C.-Kandla C / 12848/2013 G D Overseas C.C.-Kandla C /13065/2013 Lekh Raj Narinder Kumar C.C.-Kandla C /13163/2013 Lal Mahal Limited C.C.-Kandla C /13164/2013 Lal Mahal Limited C.C.-....
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....012 is allowed by way of remand. Appeal of M/s. Subh Labh Agencies is dismissed. Appeals of Shri Vivek Shukla, Shri Santosh Kumar and Shri Vipul Sharma are allowed by way of remand. 8. Appeals No. C/11890/2014, C/12216/2014 and C/12217/2014 have been filed by M/s. Kunal Travels and Sunil Bhatia proprietor of M/s. Kunal Travels. M/s. Kunal Travels is a customs broker. In all these cases, it is seen from the grounds of appeal that they have challenged the imposition of penalty on the ground that it is not been established that they had knowledge of the fact that non-Basmati Rice was being misdeclared as Basmati Rice. From the impugned order, Para 41 it is seen that the penalties have been imposed on the following grounds:- In view of the discussion above in nut shell I find that Shri Bharat H Umraniya, Manager of CHA firm M/s Kunal Travels (Cargo) was deliberately not disclosed the facts of the department officers which established that he was actively associated in the said attempted illicit export of Non-Basmati Rice. Shri Bharat Umraniya has admitted in his statement dated 30.07.2010 that he was aware about the presence of said 12 containers of the said exporter in the CFS a....