TMI Blog2012 (5) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... goods which are not available cannot be ordered to be confiscated and no redemption fine can be imposed. - The appellants are, therefore, liable to penal action for such misdeclaration. The only point in their favour is that the misdeclaration has not led to any misuse of DEEC scheme or duty free import under the impugned advanced licences and there has been no consequent revenue loss. - Taking the same into consideration, while holding that the appellants are liable for penal action, I reduce the penalty from Rs. Two lakhs to Rs. One lakh. - C/334/2007 & C/346/2007 & C/CO/50/2007 - - - Dated:- 20-4-2012 - Dr. CHITTARANJAN SATAPATHY, J. Shri S. Venkatachalam , Adv., for the appellants Ms. Indira Sisupal, JDR, for the respondents Heard both sides. These two appeals have been filed by the department and the appellant assessee M/s. Samrat International (SI) against the very same impugned order. Appeal No. C/346/07 2. This appeal has been filed by the department. It is seen from the brief facts of the case recorded by the department in the departmental appeal that SI exported 17 consignments of Stainless Steel utensils earlier declaring the same to be of AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xports under 17 Shipping Bills, it has been argued that there is no material/documentary evidence to show that the goods were misdeclared. The charge has been made merely on the basis of statements recorded which have not been corroborated/ supported by any documentary or material evidence. Even the statements on which reliance has been placed have been retracted and denied as having not been made voluntarily. The charge of interchanging the samples has been made without any evidence. 23. I have perused the records, relevant test reports, depositions made by the Appraising Officer who examined the export consignment, drew the representative samples and gave the let export order and other relevant materials. I find a strong force in their arguments. The charge has been leveled on the basis of mere statements recorded from the notices themselves, the persons who allegedly supplied the goods. However, there is no material evidence in support of such statements. Also such statements have been denied, disputed and retracted. No test report for the past clearances have been produced which would show that the exported goods were not as per the declaration with reference to the Quality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the sample drawal procedure is strictly followed and virtually leaves no scope for any switching over/swapping when the same is being handled by the Custom Officers either in CFS or in the Docks Office. With regard to the present case he firmly denied the charge of sample interchanging/swapping and confirmed that no such sample change took place in the CFS where he was working. Therefore, I hold that charge of swapping of sample is not proved and I reject the same. Further, I find neither there is any rejection/complaint from the overseas buyer regarding the quality/grade of SS utensils exported nor any enquiry reports from foreign buyers have been produced which could prove that the goods exported were not made of required grade. In the course of investigations a number of statements were recorded. Such statements need to be supported with material evidence by way of seizure or documentary evidence contrary to the already existing test reports. It is a settled position of law that statements taken in the course of investigations a number of statements were recorded. Such statements need to be supported with material evidence by way of seizure or documentary evidence con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt grade. However, the mitigating circumstances are that the appellants requested the DRI authorities and the jurisdictional Commissioner (Export) for conversion of the DEEC Shipping Bills into free Shipping Bills and accordingly, the impugned goods were exported without claiming any duty benefit and as already stated earlier, the three advanced licences obtained by the appellants were not at all utilized, no imports were made under the same and the same have already lapsed. In this connection, he refers to page-134 of the appeal papers where the concerned AC (Exports) has recorded as follows:- The above exporter s request have been considered by the Commissioner (Exports) and the above Shipping Bills have been converted in to free Shipping Bills. Accordingly, goods allowed for export. 9. In the above noting, there is no mention of provisional conversion of shipping bills or provisional export as mentioned in the impugned order. He also states that since the goods were exported under the free Shipping Bills and there was no bond etc. executed, there is no question of confiscating the impugned goods which were not available and consequently no question of imposing any redemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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