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2015 (2) TMI 825 - AT - CustomsExport of graphite blocks - graphite of nuclear grade - Confiscation of goods - Penalty under section 114 (Penalty for attempt to export goods improperly, etc.) - Prohibited goods - Prohibition may be complete or partial - License from the dept. of Atomic Energy - Export of nuclear grade graphite blocks of cetain specification - Held that:- In the documents available on record, a list of customers to whom the appellant had supplied graphite items is given. Two of the customers listed therein are M/s BARC, Mumbai and M/s Nuclear Fuel Complex, Hyderabad which are well known institutions dealing with nuclear materials in India. Therefore, the appellant cannot take the plea that they did not know what nuclear grade graphite is. Further as per the product brochure of Nickunj Group available in the file, they are dealers/distributors for Carbonne Lorraine group who are world-wide leaders in manufacture of graphite products including specific components for nuclear and aerospace industries. It is also on record that till 2006, the appellant had represented Carbonne Lorraine/Carbone of America who are manufacturers and exporters of graphite products world-wide, and were their exclusive agents for India. It is also on record that when they represented the said company, the said company used to apply for licences in respective countries and apst records of the purchasers were relevant criteria in getting licences for graphite exports. From these documents available on record, it is clear that the appellant had the knowledge about the procedures to be undertaken for export of nuclear grade material and therefore, the appellant cannot take the plea of ignorance to escape the consequences of their actions. From the evidences available on record, the malafide conduct of the appellant is clearly established. As regards the contention that the customs had allowed export of similar consignments earlier, this argument is not tenable for the following reason. First of all, there is no estoppels in a customs transaction. Merely because the Customs committed an error in allowing a transaction, that cannot be a reason for repeating the error. In Bel Pharma Ltd. case [2010 (9) TMI 307 - SUPREME COURT OF INDIA] the Hon'ble apex Court had held that in a tax matter, the doctrine of promissory estoppels as such may not be applicable and the revenue can be permitted to take a position different from its earlier stand provided it is able to demonstrate the distinguishable features of the case. In the present case, in our considered view, the Revenue has discharged this responsibility by obtaining the test report from BARC that the goods are nuclear grade which needs a specific permission/licence for its export. In the present case, we find that the goods were brought to the customs area for the purposes of export and the shipping bills had been filed. Further, the goods needed a specific licence for the purposes of export which the appellant exporter herein did not have. In these circumstances, the attempt to export prohibited goods is clearly established and the provisions of Section 113(d) are clearly attracted. Therefore, absolute confiscation of the prohibited goods under Section 113(d) by the adjudicating authority cannot be faulted at all as the discretion to absolutely confiscate or allow redemption lies with the adjudicating authority under the provisions of Section 125(1) of the Customs Act. In the present case, the adjudicating authority has exercised his discretion to absolutely confiscate the goods as the goods are prohibited/restricted for export in terms of an international resolution to which India is a party. Therefore, the offence committed assumes significant dimension in the context of nuclear terrorism. The next issue for consideration is imposition of penalty of ₹ 30 lakhs each on the appellant firm and its Director Mr. Nickunj Shah. Considering the value or ₹ 62 lakhs of the export goods, the penalty of ₹ 30 lakhs imposed on the appellant exporter cannot be faulted at all as it is much below the limit of "three times the value of the goods as declared by the exporter in the case of prohibited goods. As regards the penalty imposed on Mr. Piyush N. Sanghvi, there is no direct involvement on his part in the attempt to export nuclear grade graphite. He has only assisted Mr. Nickunj Shah in procuring fictitious bills showing purchase of graphite blocks. Therefore, it cannot be said that any of his action/omission to act made the goods liable to confiscation. Therefore, the provisions of Section 114 are not attracted in his case and accordingly we set aside the penalty imposed on Mr. Piyush N Sanghvi, Partner of M/s Parth Enterprises. Decided against the appellant.
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