TaxTMI 
TaxTMI 
2024 (10) TMI 1072
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....or the appellant Shri Ram Kumar , Assistant Commissioner ( AR ) for the respondent ORDER PER : C J MATHEW Before us are ten appeals comprising that of M/s Dyna Biotech and two Directors of the said appellant besides those of seven customs brokers who had handled exports of 'fermenters and parts thereof' valued at Rs. 33,62,28,692, on which the principal appellant had availed drawback of Rs. 59,68,936 and refund of 'integrated goods and service tax (IGST)' of Rs. 13,03,086, against 42 shipping bills filed between 21st September 2017 and 13th August 2020. The order [order-in-original no. CC-RK/005/2022-23 Adj.(X) ACC dated 31st October 2022] of Commissioner of Customs -IV (Export), Air Cargo Complex (ACC), while confiscating the impugned ....
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....em parameters (e.g. temperature, pH, nutrients, agitation, dissolved oxygen, air flow, foam control). Technical Note: Fermenters include bioreactors (including single-use (disposable) bioreactors), chemostats and continuous-flow systems.' 3. Based on inputs from the special wing of the Central Board of Indirect Taxes and Customs pertaining to one specific consignment, the overseas transactions of the exporter came under scrutiny and proceedings were initiated for non-furnishing of licence from the competent authority as prescribed for export of such goods. It is seen from the impugned order that the confiscation of the exported goods and imposition of penalties on exporter, directors and the logistics agencies have been founded on the ....
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.... or of live cells for the production of viruses or toxins are covered in the SCOMET list published by DGFT. In my opinion, the components specified are only examples of includibility. The wordings of the notification clearly indicate that fermenters and its components are covered in the SCOMET list. Had the intention of the statue being otherwise, the notification would have clearly mentioned that only these components are included, which is not the case. The notification specifically covers fermenters and their components. The exported goods are undoubtedly of that category which is n accepted fact. The contention are therefore rejected.' 4. It was further held that the strict interpretation of notifications, espoused by the Hon'ble Supre....
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....y and the link by adducing direct evidence. It is also well settled that many facts relating to the illicit business remain in the special or peculiar knowledge of the persons concerned in it and the department is not required to prove the facts which are especially within the knowledge of the opponent. Hence in the departmental proceedings, the department is required to establish the charge at least by preponderance of probabilities.' 6. In addition, the adjudicating authority was guided by the fact that the exporter had, in connection with consignments despatched thereafter, approached Director General of Foreign Trade (DGFT) and obtained necessary permissions implying that the requirements of compliance with restrictions could no longer....
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....xpress Logistics Pvt Ltd had been proceeded with by the licensing authority, viz., Commissioner of Customs, Bengaluru, who had dropped the proceedings under the said regulations. 8. According to Learned Authorized Representative, the adjudicating authority had correctly pointed out that the SCOMET regime was intended for particular purpose and that broad view taken about the impugned goods being covered by the said regime was not disputed. The factum of having obtained export licence after the investigation commenced was, according to him, clear indication of coverage by the restricted regime and submitted that the end-use certificate furnished by the exporter did not advance their case inasmuch their validity could have been acknowledged ....
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....hat no action had been initiated by the licensing authority in relation to the earlier consignments which would have been a natural reaction had the impugned goods required such compliance. 10. The assumption of the adjudicating authority that the restrictions were amenable to broadbanding, and that too in a restrictive regime, is an incorrect perspective on licensing rules and regulations. The decisions of the Hon'ble Supreme Court in re Novapan India Ltd and re Parle Exports (P) Ltd appears to have been misapplied by the adjudicating authority. We are unable to fathom the scope for 'preponderance of probability', which relates to discharge of onus to establish goods as not smuggled or in application of evidence, for varying the requireme....