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2014 (9) TMI 1134 - HC - CustomsPenalty - non-performance/non-compliance of Past Performance Entitlement - Held that: - Though the appellant even before us has not furnished the copy of the said reply dated 15th September, 2005 but the counsel for the appellant has in this regard drawn our attention to the order dated 19th October, 2006 of the First Appellate Committee where the plea of the appellant of the short shipment being due to Embargo Cat. 338 is noticed. We may however note that the said contention was not accepted by the First Appellate Committee. We may further notice that even the Second Appellate Committee held that there is no justification in the said contention of the appellant for short shipment, because there was a facility for surrendering balance unutilized quota for the exporter in case of embargo and which was not availed of by the appellant - to enable the appellant to succeed on the said plea, it was incumbent upon the appellant to establish that the shortfall was only in quota items of US 338 and not in other quota of different countries code but which the appellant had failed to do and thus the said plea could not be believed. If the non-fulfilment of the export quota allocated to the appellant was on account of any ban or embargo put on exports, the appellant ought to have surrendered the unfulfilled quota. The appellant admittedly did not do so and now cannot be permitted to wriggle out of his liability for penalty on the said ground. Appeal dismissed with certain cost to be borne by appellant - decided against appellant.
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