TaxTMI 
TaxTMI 
2008 (2) TMI 198
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....to as Respondents), under the provisions of DEPB Scheme. In the shipping bills, the goods were declared as 'Frozen Tuna Fish'. Subsequently, it was discovered by the Turkish Custom Authorities that the goods were 'Buffalo Meat'. It was found that the containers were stuffed with 95% buffalo meat and only 5% frozen tuna fish. 4. During the course of investigations. Shri Sunil Kapur (Director) of the Respondents admitted that the goods were misdeclared in the export shipping bills. It also came on record that the misdeclaration of the description of the goods was done knowingly by the Respondents to oblige the foreign buyer, who had instructed them for this. 5. The Show Cause Notice was issued to the Respondents and their Director alleging ....
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....ld that the explanation of the Respondents that it was done only to please the foreign buyer is to be accepted. Since Section 113(i) and Section 114 are not attracted and no other penal clause has been invoked, the Commissioner refrained from imposing any penalty on the Respondents on account of misdeclaration. He discharged the Respondents and their Director with a warning advising not to repeal such things in future. However, he denied the DEPB credit of Rs. 5,00,278/- to the Respondents noting, at the same time, that it was not claimed by them. 7. The Revenue has contended before us that from the show cause notice issued, it is seen that the contravention of Section 50(2) of the Customs Act, 1962 and violations under Section 11 of Forei....
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....sh' in the export documents, they could not have satisfied the requirement requisite for the export of the buffalo meat. As such the goods were not freely exportable as concluded by Commissioner. Therefore, the goods are liable to confiscation and the Respondents are liable to penal action, 9. The Respondents, in their cross-objection, contended that although there was a technical misdeclaration of description, the reasons adduced by them and the fact that there was no financial gain or any gain in Exim Policy provisions to be obtained by such misdeclaration mitigated against the confiscation. They further maintained that there was no misdeclaration of the value as the values of both Buffalo meat and the Tuna fish were practically the same....
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....s (Sea), Chennai reported in 2004 (178) E.L.T. 278 (Tri.-Chennai) and K. Kamala Bai v. Commissioner of Customs and Central Excise, Trichy reported in 2005 (186) E.L.T. 459 (Tri.-Chennai) in whichit has been held that the goods which have already been export out of thecountry are not available for confiscation and, therefore, cannot be confiscatedunder Section 113 of the Customs Act, 1962 and no redemption fine can be imposed and no penalty is imposable under Section 114 ibid. In the light of the above, they prayed for upholding the order passed by the Commissioner. 11. We have examined the rival submissions. We find that the Respondents knowingly misdeclared the goods in the shipping bills in question and thus contravened the provisions o....