TaxTMI 
TaxTMI 
2023 (12) TMI 325
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.... shipping bills were filed claiming benefit under Merchandise Export from India Scheme (MEIS). As per Public Notice No.23/2015-2020 dated 13.07.2018 issued by the Director General of Foreign Trade, Ministry of Commerce & Industry, Department of Commerce, Udyog Bhawan, New Delhi, the impugned goods i.e. "Whey Flour Powder (Customs Tariff Head- 04041020)" was added in the MEIS Appendix 3 B, Table 2 @ 10% of FOB value during 13.07.2018 to 12.01.2019. The declared FOB value of the impugned orders was Rs.6,89,41,504/- wherein the MEIS benefit @ 10% of the FOB value that would be available to the appellant was Rs.68,94,150/-. 3. The consignments covered under these shipping bills were examined by the officers of Directorate of Revenue Intelligence ("DRI" in short) on 15.12.2018 and 17.12.2018 at Mundra Port. Samples of the consignments were sent for testing to Fair Quality Institute (Food Analysis & Industrial Research Quality Institute), New Delhi, which confirmed the impugned goods to be "Maida" (Wheat Flour), against which there was no Merchandise Export from India's Scheme benefit during the relevant period. As the goods were found to be mis-declared, they were seized vide seizure m....
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....ank guarantee was entrusted to the Competent Authority, which as per the said Circular covered the probable redemption fine and penalties that may be imposed at the time of adjudication. As the Department had also alleged the charge of overvaluation of the goods so as to wrongly avail the MEIS benefit, it was observed that the export goods appeared to be liable for confiscation under the Customs Act, 1962 and accordingly, the redemption fine and penalties under Section 114 (iii) and Section 114 (AA) were liable to be imposed and in that view, the quantum of bank guarantee was held to be justified. Being aggrieved, the appellant has preferred the present appeal before this Tribunal. 6. The present appeal was filed on 22.04.2019 and we find from the Court proceedings that there is a chequered history of non-appearance of the appellant except on one or two occasions. The order passed by this Tribunal on 20.04.2023 is quoted below:- " None is present for the appellant. Perusal of file shows that appellant has repeatedly been seeking the adjournments though on few of the occasions, the matter could not have been taken up during the court hours. In the interest of justice, the matter ....
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....rom proceeding with his case in a rightful manner and amounts to foreclosing the defence pending investigation. It is pertinent to mention that the case is under investigation and allegation qua the appellant have not been finalized. F. Because the appellant cannot be debarred from asserting its version as to the value and classification of the goods. It if the condition of furnishing undertaking is allowed to stand, the respondent can unilaterally allege any description and continue to keep the goods under detention unless the appellant agrees to withdraw the challenge to the valuation, description, etc. This would certainly amount to denial of justice." 11. The learned Authorised Representative for the Revenue has heavily relied on the CBEC Circular No.1/2011-CUS dated 04.01.2011. The title of the Circular reads as - "Provisional release of export - goods detained for investigation - Regarding". The relevant provisions of the said Circular is reproduced below:- "4. Seizure should be resorted to only when the Customs officers have a reason to believe that the goods in question are liable to confiscation under the Customs Act, 1962 and thereafter the provisions of Section 110A....
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.... "54. If the contentions of the appellant have to be accepted, then all the goods seized and liable for confiscation have to be provisionally released, in terms of Section 110(1A) of the Customs Act, 1962, and in such circumstances, the very object of the Customs Act, 1962, would be defeated. Going through the notifications, we are of the view that the above said notifications do not confer any absolute right to the appellant, to seek for provisional release of gold, alleged to have been smuggled. 89. While considering a prayer for provisional release, pending adjudication, whether all the above can wholly be ignored by the authorities, enjoined with a duty, to enforce the statutory provisions, rules and notifications, in letter and spirit, in consonance with the objects and intention of the Legislature, imposing prohibitions/restrictions under the Customs Act, 1962 or under any other law, for the time being in force, we are of the view that all the authorities are bound to follow the same, wherever, prohibition or restriction is imposed, and when the word, restriction, also means prohibition, as held by the Hon'ble Apex Court in Om Prakash Bhatia's case (cited supra). ....
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....valent to the value of the goods and along with that is the requirement of furnishing appropriate security so as to cover the redemption fine and penalty. The contents of the circular are simple, clear and there is no ambiguity in the terms and conditions prescribed therein and hence the same has to be complied. 14. The authorities below has categorically recorded the findings on the basis of the test report that the description of the impugned goods to be exported have been mis-declared. The appellant has described the goods as 'Whey Flour Powder', however, they were found to be 'Maida'. By virtue of the said mis-declaration, the appellant attempted to achieve the benefit of 10% of the FOB value as whey flour powder was covered under the MEIS whereas Maida was not covered under the said Scheme and therefore the appellant would not have been entitle to the benefit of the Scheme. Similarly, even in respect of valuation, the appellant has over valued the goods. 15. In view of such mis-declaration the Circular is clearly applicable and hence the conditions imposed for provisional release are fully justified. The Commissioner by the impugned order has rightly arrived at the conclusio....