TMI Blog2014 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... s, grain of rice to be exported shall be more than 7 mm of length and ratio of length/breadth of the grain shall be more than 3.6 mm. Confiscation of the goods and imposition of redemption fine of ₹ 68 lakhs in the circumstances of the case is justified. This is exemplary case where higher penalty is warranted and no leniency is deserved. We do not consider it proper to interfere with order of redemption fine as it is appropriate and justified. Similarly, there is no scope for reduction of penalty of ₹ 10 lakh imposed on the appellant as their modus operandi proved that they were consciously involved in the export of non-basmati rice which were prohibited goods. Similarly role of CHA was contrary to the CHALR 2004. Attempt to export non-basmati rice in the guise of Basmati rice would not have been possible without CHA s involvement. Their conduct and contradictory stand by Shri Sunil Bhatia CHA and his manager Shri Sushil Malik regarding physical verification proves their active involvement. Same CHA s name has also come in appellant s other company M/s Vaibhav Overseas where similar modus operandi was noticed. We are convinced that CHA has rightly been imposed pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 containers, said to contain basmati rice, cleared for export by the exporter from CFS Albatross, and waiting for loading in ship at JNPT, Nhava Sheva Port, Mumbai, were called back for detailed examination at CFS Albatross. 6. On visual examination of the contents of the said containers by the customs officers at CFS Albatross, in presence of Party No.1, and representative of the CHA (Party No.3), it was observed that only the bags in front rows were containing basmati rice and rest of the bags in all the containers were containing non-Basmati rice. On visual inspection of the said rice grain, it was observed that the grain of rice did not conform to the specification of Basmati Rice as provided in DGFT Notification no. 39 (RE-2008)/2004-2009 dated 16.9.2008 (as amended) wherein it was stipulated that grain of rice shall be more than 7mm of length and ratio of length to breadth of the grain shall be more than 3.6. Under the reasonable belief that the exporter had fraudulently attempted to export the prohibited goods i.e. non-Basmati rice in the garb of Basmati rice, all the 34 containers were placed under seizure under Section 110 of the Customs Act, 1962 Simultaneously, thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0612827 75 dt.14.07.09 76 dt.14.07.09 2. 1052832 dt.26.03.09 MOAU 6532652 MOAU 0724051 MOAU 0515637 MOAU 0421986 77 dt.14.7.09 78 dt.14.07.09 79 dt.14.07.09 80 dt.14.07.09 3. 105283 dt.26.03.09 MOGU 2601935 MOAU 0111023 81 dt.14.7.09 82 dt.14.07.09 4. 1053033 dt.27.03.09 TGHU 0650770 GLDU 3356737 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality of rice (Basmati or non-Basmati). In their subsequent report dated 17.7.2009, SIIR opined that samples do not conform the length/breadth ratio and samples do not meet the requirements of basmati rice as per Agmark specifications. Similarly, SGSs report dated 20.7.2009 opined that the samples do not conform the length/breadth ratio and samples do not meet the requirements of basmati rice as per Agmark specifications. Ld.Counsel contested that once shipping bills were permitted for export as let export order had been passed that amounted to an order of adjudication and review of said order was not permissible in law. He further submitted that the first report of SRI, New Delhi dated 29.6.2009 were in favour of the appellant except one sample. Copies of the same were not supplied to the appellants, despite repeated requests. It was further contended that the department could not go on drawing samples for testing merely because reports of those samples were in favour of the appellant. He also submitted that their request for cross examination of Shri S.K.Chib was not accepted. Appellant also raised the issue that redemption fine of ₹ 68 lakhs was on higher side and require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as laboratory staff of SIIR, New Delhi came to light. Such practice was followed to defraud the revenue. Only one sample in respect of test memo no.45 failed the specification and did not conform to the requirement as laid down by DGFT Notification No. 39/(RE-2008)/2004-2009 dated 16.9.2008 as amended, that is, grain of rice to be exported shall be more than 7 mm of length and ratio of length/breadth of the grain shall be more than 3.6 mm. 19. When the containers were called back from Nhava Sheva Port, Mumbai and detailed examination was done at CFS Albatross, it was found that all the test reports were manipulated. Therefore, fresh samples were again sent to SIIR, New Delhi and SGS Gurgaon. Test report, therefore, proved that the consignments were of non-basmati rice which were prohibited to be exported by DGFT Notification No. 39/(RE-2008)/2004-2009 dated 16.9.2008 as amended. These results demolish the defence of appellants that there were mixing of consignment and some non basmati rice were wrongly loaded in the containers. There could have been force in their arguments, if out of 34 containers had there been 5 to 6 containers have been loaded under mistake. But majori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 2.5 lakh on Shri Gyan Chand, partner of M/s. Prince International who has admitted his willful involvement in attempt to export of non-basmati rice in the guise of basmati rice, that calls for penalty on him. Considering non-basmati rice weighing 824.500 MT total value amounting to ₹ 4,59,80,285.00 (FOB) rice attempted to be exported, a very high penalty was required to be imposed. However in absence of revenue being in appeal, we do not interfere to amount of penalty imposed on Shri Gyan Chand, partner M/s Prince International. 23. Similarly role of CHA was contrary to the CHALR 2004. Attempt to export non-basmati rice in the guise of Basmati rice would not have been possible without CHAs involvement. Their conduct and contradictory stand by Shri Sunil Bhatia CHA and his manager Shri Sushil Malik regarding physical verification proves their active involvement. Same CHAs name has also come in appellants other company M/s Vaibhav Overseas where similar modus operandi was noticed. We are convinced that CHA has rightly been imposed penalty. Considering amount of penalty being low but revenue not being in appeal, we do not interfere to the penalty imposed in adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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