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2018 (12) TMI 797 - AT - CustomsPenalty - DEPB Scheme - duty drawback - it was alleged that the appellant company availed Export incentive mis-declaring the same as of Indian Origin in the export documents - Held that:- The appellant company exported FeSi during the period from 2008-09 to 2012-13 against 18 Consignments and availed export incentive in the form of Duty Entitled Pass Book (DEPB)/ Duty Draw Back (DBK). It has also availed in some cases, incentive under Focus Marketing Scheme (FMS) in addition to DEPB/DBK against the export consignment. It was found that the exported FeSi, against which DEPB and FMS was availed, was procured from Traders/ Suppliers of Local Market in India. Once the issue referred to DGFT for cancellation of DEPB/FMS Scrips and the adjudication order passed by DGFT had imposed fiscal penalty only, without cancelling the said Scrips and hence, credits allowed cannot be denied. Further, Customs had no authority to take any parallel action under different law making the case a double jeopardy - Goods were not available for seizure and no specific evidence could be adduced to justify mis-declaration and hence, penalty is not imposable. Taking into consideration of the fact that the DGFT authorities had already imposed penalty upon the appellant, the penalty imposed on the appellant company is not warranted. Further, after going through the statements and the conduct of the appellant no. 2 in so far as they have returned the incentive immediately, the penalty imposed under Section 114 (iii) on the appellant no. 2 needs to be waived. Penalty set aside - appeal disposed off.
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