AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 5
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....ever, the goods with respect to two Shipping Bills i.e., 2677868, 2677764 were not yet brought in the Export Shed, ICD Tughlakabad. The remaining 3 Shipping Bills i.e., 2677670, 2677803 and 2678044 were found lying therein. The goods covered under the said three shipping bills were claimed to be made from the fabric which was imported by M/s Kwality Overseas Private Limited against Advance Authorization No. 3010084520 dated 19.03.2012. The said Advance Authorization, as per the provisions of export import policy was for import of input items (as per detail in the said license) for CIF value of USD 8.00 lacs (Rs. 3,95,20,000/-) with an obligation to export goods as mentioned in the authorization for FOB value of USD 1120000 (Rs. 5,53,28,000) within the stipulated Export Obligation (EO) period which expired on 18.03.2014. 3. The goods of 3 shipping bills were examined in the presence of G-card holder M/s Karan Logistic, Shri Ranjan Mittal. The goods were found to be bad quality, old and torn ladies readymade garments with no specification about any brand name, manufacturing date etc. The quantity of those garments was also found short than the declared quantity in the respective shi....
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.... that the said authorization (the details whereof already quoted above) was not transferable. The stipulated period for meeting the export obligation under said authorisation expired on 18.03.2015. Since M/s Kwality Overseas Private Limited (the Advance Authorization License Holder) had failed to submit documents evidencing the fulfilment of export obligation against the said advance authorization that the matter was adjudicated vide Order-in-Original dated 02.06.2017 by imposing penalty of Rs. 8.00 Crores of M/s Kwality Overseas Private Limited. From the perusal of IEC bearing No. 1201001811 of M/s Kwality Overseas Private Limited, and IEC bearing No. 3010002572 of M/s Cadex Filament Private Limited, department observed that these are the related companies as Shri R K Goyal is mentioned as the common Director of both these companies. However, the said fact was never disclosed to the department nor it was disclosed that the period of Advance Authorization had already expired. 6. Though the samples from the goods were drawn in the presence of G-card holder customs broker of the appellant. But since, Shri R. K. Goyal had never appeared that the department offered second option of re....
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....rseas Private Limited. It was opined that Shri Rakesh Kumar Goyal, Director of M/s Candex Filament Private Limited with an intent to make illegal gains by mis-utilising the provisions of the Foreign Trade Policy (2015-20) and also the Customs Act, 1962 has committed the offense. With these observations, a show cause notice No. 03/2018-19 dated 10.05.2018 was served upon M/s Candex Filament Private Limited (the exporter) and Shri Rakesh Kumar Goyal (its Director) proposing confiscation of the goods covered under five of the impugned shipping bills with denial of benefit of Annual Advance Authorization Scheme in respect of those goods and denial to export the same under the garb of discharge of export obligation of the advance authorization in favour of M/s Kawality Overseas Private Limited, the penalties were also proposed to be imposed upon both the appellants. The said proposal has been accepted vide the Order-in-Original No. 10/2018 dated 05.12.2018. Being aggrieved, the appellants are before this Tribunal. 9. We have heard Ms. Saksham Garg, Advocate for the Appellant and Shri S. K. Rahman, Authorized Representative for the Respondent. 10. Learned Counsel for the appellant subm....
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.... made out of different fabrics as were used for different purposes as that of lining, sleeves, neck line etc. The conclusion of mis-declaration or under-valuation of the entire dress, therefore, cannot be drawn based on the examination of only 20cm square sample thereof. The reluctance of appellant for re-examination of the goods was not only practically difficult due to unpacking and repacking of huge consignment but was also leading to unnecessary financial loss to the appellant and could have worsen the conditions of the goods. These reasons are sufficient to falsify the criteria's based whereupon the penalties have been imposed on the appellant. Above all none from M/s Kwality Overseas Private Limited but actual manufacturer of the garments and the advance authorization holders were called upon at the time of drawing the samples. 13. It is further mentioned that the appellant was involved in third party exports, hence, has wrongly been held responsible for any lapse with respect to advance authorization in favour of M/s Kwality Overseas Private Limited. The goods in question were neither prohibited nor contravened any provision hence, have been improperly seized contrary to th....
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....o the notice of the department. Hence, there is no infirmity as far as the order of imposition of penalty of both the appellants is confirmed. The exporter was given the option to get the goods released on provisional basis by submitting the bonds and bank guarantees and to export the same at the earliest. But, the appellants took inordinate long time to submit the bond and bank guarantees which caused delay in releasing the goods for export. 16. Learned Authorized Representative further impressed upon that the submission of the appellant that they were ready to forgo their export benefit would not come to their rescue as they were not otherwise entitled for it as the goods were being exported by utilizing and expired advance authorization. Further since the delay in getting provisional release was due to appellant's own fault, department cannot be held responsible for increased demurrage charges. The release order was given by the department on the very next day of submission of bond and bank guarantee. Learned Authorized Representative has alleged appellant's to have distorted the facts of the case and to mislead the Tribunal by putting forward wrong facts. The goods were actual....
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....d 01.12.2016 as was issued to M/s Kwality Overseas Private Limited proposing an action under Section 11(2) of Foreign Trade (Development and Regulation) Act, 1992 and Rule 7 of Foreign Trade (Regulation) Rules, 1993 for contravening the condition of advance license No. 3010084520 dated 19.03.2012 as was accorded/issued by Joint Director of General Trade Ludhiana. Another show cause notice dated 16.03.2017 was issued to M/s Kwality Overseas Private Limited proposing similar action. It was held in the said order that M/s Kwality Overseas Private Limited has not fulfilled the export obligation as per the provisions of Exim Policy. Resultantly, a penalty of Rs. 8.00 Crores was imposed upon M/s Kwality Overseas Private Limited vide said order of 02.06.2017. 19. Apparently and admittedly, the appellants have attempted to export the goods vide impugned five shipping bills based on said advance authorization which already got cancelled on 02.06.2012. There is nothing on record produced by the appellant to support the contention that the extension of said advance authorization was applied for and was pending consideration on the date of filing of impugned shipping bills. It is also apparen....
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....f the fabric. This also proves that the goods which were attempted to be exported as export obligation of an advance authorization were not manufactured from the fabric which was imported as fabric/raw material imported as exempted under said advance authorization license. These observations, therefore, falsify the claim of the appellant that the readymade garments (ladies dresses) i.e. the goods which were to be exported vide impugned five shipping bills have been made out of raw-material imported against authorization dated 19.03.2012. The said observation has been made the basis for order of confiscation of the impugned goods and imposition of penalty on the appellant by the adjudicating authority below. Since the appellant has not produced on record anything contrary thereto, we find no reason to differ from those findings. 22. Coming to the appellant's request as per their reply, praying for re-drawing of the samples and re-examination thereof in their presence, we observe that the department readily accepted the said request and offered second option for re-examination and fresh drawl of the samples. However, despite conveying that appellant's representative shall be availab....
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.... and bank guarantees vide their letter dated 15.03.2018. Those bonds were submitted on 21.03.2018 and the order of releasing the goods provisionally was granted on the next dateon 22.03.2018. But it is apparent on record that the appellant had not taken the release. Department vide their letter dated 12.04.2018 sensitized the exporter-appellant that they can either get the goods released or can get those warehoused in terms of section 49 of Customs Act, 1962. However, no communication was received from the appellant as it was never earlier received since the time of issuance of the show cause notice. We do not find anything on record which may support the appellant's contention that the goods were not provisionally released on account of department faults and that he suffered financial losses due to department's fault. We rather hold contrary that the appellant had throughout been non-cooperating and has been concealing and manipulating the facts. He failed to take the provisional release of the goods despite the order in that respect. The department rather vide their letter dated 22.03.2018 had requested CONCOR to waive of all demurrage charges against the goods under impugned the....