TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 288
X X X X Extracts X X X X
X X X X Extracts X X X X
....e". Initially, on visual examination, it was found to be in order, but later on reexamination of the goods, the gold content of the consignment was found to be less than the quantity of gold declared. Against the declared weight of gold of 13633.730 gms (22 Carat), it was found to be 3540 gms. Consequently, on further detailed investigation, it revealed that the appellant SGPL. Had purchased a total weight of 13000 gms of gold from MMTC, Bangalore under "Outright Scheme" for manufacture of Gold Jewellery with an obligation to export the same with certain quantity of gold within stipulated period of ninety days with required value addition. Alleging that in order to show that the export of gold in the form of Gold Jewellery was in compliance with the said scheme, the appellant SGPL mis-declared the actual quantity of gold containing in the said jewellery, a show-cause notice was issued to SGPL proposing confiscation of the same under Section 113(h) and 113(i) of Customs Act,1962; Penalty under Section 114(iii) on SGPL; also personal penalty on other noticees under Section 114(iii)and 114AA of the Customs Act, 1962. On adjudication, the gold jewellery was confiscated with an option t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8.5.2014 a total quantity of 27267.46 gms of gold and 30377 gms of cubic zirconium was handed over to Shri Hitesh Desai by SGPL, the appellant as stated by both Shri Roshan S Vernekar and and Shri Hitesh Desai in their respective statements. Also, these facts have been further ascertained during the cross examination of Shri Hitesh Desai on 15.12.2016. Therefore, the Karigar who was handed over gold has cheated the appellants while making the jewellery by using lesser quantity of gold and more quantity of cubic zirconium and stealing the excess amount of gold. Thus, there is no intention on the part of the appellant SGPL or any of the appellants in the mis-declaration of the quantity of gold as alleged and confirmed by the Commissioner. She has further submitted that the cross-examination of Shri Hitesh Deasi sufficiently proves that he had received the correct quantity of gold as was required to make the gold jewellery as declared and also shows that the appellants SGPL were not in any manner aware about the change in quantity of gold in the making of the jewellery by the karigar, which was meant to be exported. It is her contention that the learned adjudicating authority failed t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad signed the export documents with an intent or knowledge to the effect that the declaration of the goods entered in the export documents could not match with the actual goods meant for export as a result of the fraud committed by the Karigar. 7. Learned AR for the Revenue reiterates the findings of the learned Commissioner. 8. Heard both sides and perused the records. 9. The issues involved for determination are:(i) whether the goods meant for export are liable for confiscation under Sec. 111(h) and 111(i) of the Customs Act, 1962 and (ii) penalty under Sections 114(iii), 114AA and 117 of the Customs Act, 1962 are imposable on SGPL and other Appellants involved in the mis- declaration of attempt to export 22 "carat gold jewellery". 10. The facts not in dispute are that the appellant SGPL purchased 13633.730 gms of gold from MMTC, Bangalore under "outright purchase scheme" with an obligation to export the same within a period of 90 days after 5% value addition to the price of the said gold. As per the said scheme, they filed a shipping bill No. 11026 on 26.5.2014 declaring the gold content of 22 carat in the Gold studded jewellery of 15290.330 gms as 13633.730 gms.; whereas on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on made on behalf of the appellant company M/s SGPL. The learned Commissioner also did not accept the submission of Shri Roshan Vernekar that the making of jewellery was entrusted to one Shri Hitesh Desai, who met him only once and also without visiting the premises of Bengali Babu, who carried out the making of jewellery for export, and the said gold jewellery was accepted as genuine and declaration with Customs for export was filed accordingly. Thus, he found him guilty and imposed penalty both under section 114(iii) & 114AA of Customs Act, 1962 . I do not find justification to interfere with the said finding of the Ld. Commissioner which points out to omission of necessary steps required to be taken by Shri Roshan Vernekar in the verification of the jewellery and preparation of export documents on behalf of SGPL. Also, it cannot be ignored that as a remedial action, necessary criminal case was initiated against the karigar. In these circumstances, the penalty imposed on him seems to be disproportionate and consequently deserves to be reduced. Consequently, penalty on Shri Roshan Vernkear under Section 114AA is reduced to Rs. 2.00 lakhs and penalty under Sec. 114(iii) is set asid....