TaxTMI 
TaxTMI 
2017 (9) TMI 202
X X X X Extracts X X X X
X X X X Extracts X X X X
....04. The goods were exported under shipping bills claiming DEPB benefit under S.No.520/62 of the DEPB Schedule notified by the Director General of Foreign Trade in terms of the provisions of the Export Import Policy 2002-2007. The said consignment was stuffed at New Delhi and re-stuffed at ICD Dronagiri. ii) The said container was opened for examination on 29.7.2004 by the customs officers and representative samples of 12 brands of goods declared as 'Eau De Perfume' were drawn from the consignment, however, the description on the outer bottles of the drawn samples was 'Eau De Toilette', 'Fragrance De France' and 'Vaporizer'. Hence, the samples were drawn and send for testing to Chemical Examiner, Customs Laboratory, New Customs House Mumbai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he due process of adjudication, vide the impugned order, the duty demands as proposed above were upheld. The export goods covered by the impugned shipping bills were confiscated and allowed to be redeemed on payment of redemption fine. Penalties were also imposed on M/s. Stella Industries, exporters as well as Shri Rohit Wassan, Executive Director. Aggrieved by the impugned order, the present appeals have been filed. 4. With the above background, we heard Ms Nupur Maheshwari, learned Advocate for the appellants and Shri Govind Dixit, learned DR for the Revenue. 5. Heard both sides and perused the material on record. The appeals have been filed mainly on the following grounds: (i) Customs have no jurisdiction to deny DEPB credit and recov....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... c. Mercantile India Vs CC [2007 (214) ELT 540 (Tri-Chen) maintained at [2009 (237) ELT A21 (Mad)] (iv) There was no mis-declaration by the Appellant. That the Appellant never mentioned the description 'Eau De Toilette' on the outer bottles as stated in the Show cause notice. The learned Commissioner has also agreed to it. However, the learned Commissioner has held there has been mis-declaration by the Appellant on the basis of the test reports read with the SION which according to him clearly indicate that the Appellant was exporting 'Eau De Toilette' perfumes instead of 'Eau De Perfume. (v) It is submitted that extended period of limitation is not invokable and the demand for the past period cannot be raised against the Appellant on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jurisdiction to deny DEPB credit and recover the same as duty of Customs. 8. We have perused the case laws cited by the appellants wherein it has been held that Customs authorities can raise the demand under section 28 of the Act only when DEPB credit is utilized. In respect of two impugned shipping bills, we note that DEPB benefit amounting to Rs. 87,811/- has not been credited by the licensing authority. As such, we see no justification in raising the demand for this amount under section 28 along with interest. At best, Customs authorities can take up the matter with the Licensing authority under the Foreign Trade Development Regulation Act for non-grant of such DEPB credit. From the record, we find this has already been done. However, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ind of evidence with reference to goods exported earlier, we are of the view that the allegations of misdeclaration in the earlier consignment cannot be upheld. For the same reason, the benefit of DEPB already claimed by the appellant in respect of such exports cannot be denied. Consequently, the duty demand amounting to Rs. 11,58,438/- as well as all other penal proceedings ordered consequent to Show cause notice dated 06.06.2006 cannot be sustained and are set aside. 10. In view of the above discussions, following order is passed. The impugned order with reference to shipping bills 1401711 and 1401712 both dated 9.7.2004 is modified as follows: (i) DEPB credit of Rs. 87,811/- (Rupees Eighty-seven thousand and eight hundred eleven only) ....