TaxTMI 
TaxTMI 
2025 (5) TMI 1734
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....t the Order-in-Appeal No. KOL/CUS(PORT)/134/2020 dated 03.01.2020 passed by the Commissioner of Customs (Appeals), 3rd Floor, Custom House, 15/1, Strand Road, Kolkata - 700 001 wherein the Ld. Commissioner (Appeals) has rejected the appeal filed by the appellant. 2. The facts of the case are that the M/s. Saraf Overseas (appellant) is a merchant exporter. The appellant exported a shipment of 2392 M.T. of "Indian Cane White Sugar" under Bill of Export No. 08/EXP/RAN/DFIA/07 dated 14.04.2007 to M/s. Ornate Services Ltd., Bangladesh under DFIA Scheme. After the export, the appellant realised that DFIA Scheme was not beneficial to them and wanted to avail the DEPB scheme instead. Accordingly, the appellant filed an application for conversion o....
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....alty of Rs.1,00,00,000/-under Section 114AA of the Customs Act, 1962. 4.1. The appellant challenged the said order before the Ld. Commissioner (Appeals), who, vide the impugned order, rejected the appeal filed by the appellant. 5. Aggrieved against the imposition of the above said penalties, the appellant has filed the present appeal. 6. The submissions made by the appellant are summarized as under: - (i) The ld. adjudicating authority has erred in imposing a penalty of Rs.1,00,00,000/- under Section 114AA of the Customs Act, 1962 and Rs. 1,65,000/- under Section 112(a) (ii) of the Customs Act, 1962, as the conditions required for imposing penalties under the said sections does not exists in this case. (ii) The penalties have been im....
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....10/526(SIU) dt. 13.06.2011. On the above circumstances, the matter is to be treated as closed. (viii) The AC(Tech)'s letter conveying rejection of conversion by Commissioner without advancing reason for arriving at the said decision. The said letter is not an order signed by commissioner and thus can be treated as illegal, not to be taken as basis for alleging fraud or suppression. Reliance in this regard has been placed on the judgement in the case of M/s. Apple International vs Commissioner of Customs, Nhava Sheva [2000(120) ELT 671 (Tribunal)], M/s. Lubrichem Industries Ltd vs CCE Bombay [1994 (73) ELT 257 (SC)] and other case laws. (ix) The benefit under DFIA is much higher than that of the benefit under DEPB Scheme. Hence, ther....
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....ard's Circular No. 4/2004 which was not applicable in the instant case. (xvi) Penalty u/s 114AA is not applicable since the appellant is not a party in the matter of import and no document was filed by them in that regard and the order of conversion has been accepted by the Commissioner (Preventive). Further it was held that the conversion of DFIA shipping to DEPB shipping bill was legal as it is evident from the letter dated 13th June, 2011 forwarded to the DRI. (xvii) Imposition of penalty u/s 112(a) is improper since DFIA license was validly issued and importation took place during the validity period of the license. Reliance in this regard is placed on the decision in the case ofSampat Raj Dugar vs Union of India [1992 (58) ELT ....
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....lable to the appellant under the DFIA scheme was much higher than that of the benefit under DEPB Scheme. Hence, it was concluded that there has been no unintended benefit availed by appellant and the switching over from DFIA to DEPB is not tantamount to violation of any policy. 11. For the sake of ready reference, the communication issued by the Addl. Commissioner of Customs (P&V), CC(P), Kolkata, West Bengal to the Ld. Addl. Director General, Directorate of Revenue Intelligence (DRI), Kolkata Zonal Unit dated 13.06.2011 is reproduced hereinbelow : - 11.1. From the above, it is evident that the Ld. Commissioner of Customs (Preventive) has examined the application for conversion from DFIA scheme to DEPB scheme and concluded that the said c....
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....ant. The present appeal deals only with the penalties imposed on the appellant. 12.1. We observe that Section 114AA of the Customs Act which deals with false statement in a document and fabricated documents. We observe that no such documents could be identified in this case. Thus, we observe that penalty u/s 114AA is not applicable in this case, since the appellant is not a party in the matter of import and no document was filed by them. We also observe that the order of conversion from DFIA scheme to DEPB has been accepted by the Commissioner (Preventive). Further it was held that the conversion of DFIA shipping bill to DEPB shipping bill was legal as it is evident from the letter dated 13th June, 2011 forwarded to the DRI. Thus, we hold ....