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TMI Blog2009 (6) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... d and seized on 23-8-2007 and 14-9- 2007. The lower authorities conducted investigations and recorded statements of various people. On recording such statements, the lower authorities felt that there was an overvaluation of the consignments and coming to such a conclusion, show cause notice dated 16-1-2008 was issued to the appellant and its proprietor proposing various actions mainly as under:- (i) the goods, contained in the 5 containers viz Container Nos. GSTU 515303-1, TR 141439-5, PCIIJ 324616-9, TRIU 374577-2 & TRIU 393481-6, exported/attempted to be exported and declared to be covered under 18 shipping bills filed under OFIA Scheme mentioned in the Annexure B to the notice shall not be treated as "Readymade Garments made of cotton, polyester, nylon & viscose fabrics and their blends' and "100% polyester saree"; (ii) the "Readymade Garments made of cotton, polyester, nylon & viscose fabrics and their blends" and "100% polyester saree" actually found in the above said 5 containers should not be treated as goods misdeclared and exported/attempted to be exported in the guise of the description "Natural Silk Mixed Sarees"; (iii) the misdeclared goods "Readymade Garments made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of Es. 29,48,517/- for the "Ready made Garments made of cotton, polyester, nylon & viscose fabrics and their blend" covered under 5 shipping bills filed under Draw back Scheme mentioned in Annexure fl to this notice should not be rejected and their market value should not be re-determined at Rs.18,76,800/-; (xi) the "Readymade Garments made of cotton, polyester, nylon & viscose fabrics and their blend' covered under the 5 shipping bills filed under Drawback scheme, now valued at Rs.18,76,800/- ,should not be confiscated under Section 113 and 113( of the Customs Act, 1962; (xii) the drawback amount of Rs.2,06,760/- claimed on the "readymade garments" covered under 5 shipping bills filed under Drawback scheme mentioned in Annexure B to this notice should not be rejected and drawback amount, if any, sanctioned to them against these 5 consignment should not be recovered along with interest as provided under Rule 16 of the Customs, Central Excises Duties & Service Tax Drawback Rules, 1995; (xiii)the total amount of Rs.1,35,00,964/- received into the Current Ac count No.331301010057191 with Union Bank of India, Avenue Road Branch, Bangalore and Bank Current Account No. 123011006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sarees". 4. I also deny the benefit of duty free imports under OFIA Scheme vide Notification No. 40/2006-Cus., dated 1-5-2006 that may be availed in future agatusi the fraudulent exports carried out/sought to be carried out by the Noticee. 5. I confiscate the goods found to be "Readymade garments made of Cot ton, Polyester, Nylon and Viscose fabrics and their blends" and "100% Polyester Sarees" in the said 5 containers and declared to be covered under the 18 Shipping Bills filed under UFTA Scheme seized by DRI vide Mahazar dated 19-4-2007/264-200? drawn at Cochin Port and Mahazars dated 23-8-2007 and 14-9-2007 drawn at ICD, Bangalore, valued at I 28,29,390/- under the provisions of Section 113(h) and (i) of the Customs Act, 1962. However, I allow them to re-deem the same on payment of a fine of Rs.15,00000/- (Rupees Fifteen lakhs only) under Section 125 of The Customs Act, 1962. 6. I also order re-assessment of the goods covered under the said 18 Ship ping Bills under Section 17 of the Customs Act, 1962 based on their actual description, value, quantity without the benefits of the DMA Scheme. 7. 1 reject the declared FOB value of Its. 29,48,517/ for the "Readymade garments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nylon and Viscose fabrics and their blends and "100% Polyester Sarees' covered under the 5 containers mentioned in Annexure-B to the Notice. 14. I also impose a penalty of Its. 15,00,000/- (Rupees Fifteen takhs only) on Shri Baloo Panchariya/Balaji S/o Shri Rain Bilas Panchariya under Section 114(iii) of the Customs Act, 1962 for his acts of omission and Commis sion which have cendered the goods "Readymade garments made of cot ton, Polyester, Nylon and Viscose fabrics and their blends" and 100 % Polyester Sarees" covered under the 5 containers mentioned in Annexure-B to the Notice. 4. The learned counsel appearing on behalf of the appellant submits as under: (A) The Id. Commissioner has passed impugned order in gross violation of principles of natural justice as if the Id. Commissioner wanted to reject the request for supplying copies of documents in Kannada as Appellant did not follow English could have given the last opportunity of hearing after rejecting his request and after giving opportunity to file reply. (B) The Appellant submits that there is no evidence beyond reasonable, doubt in respect of 18 shipping bills confirm to the charges again of the Appellant no as expert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner himself has redemption fine of 7% for release sales proceeds and wheteas imposed in respect of readymade garments covered under 18 shipping bills, the redemption fine imposed 53% and in the case of export goods covered under 5 shipping bills under drawback schemes it is 48%, thus being very harsh and excessive. (H) The Id. Commissioner has further erred in imposing penalty on the Appellant in his individual capacity and also on the firm. It is well settled that no separate penalty is imposable on proprietor in case of proprietary firm as held by Hon'ble Tribunal in the case of Pragati Press v. CC, New Delhi reported in 1994(72) E.L.T 620 (Tri). (I) The Id. Commissioner has failed to consider that not only the appellant has suffered but Appellant is denied the benefit of drawback and DFIA therefore the Id. Commissioner has erred in imposing a very harsh penalty. The Appellant relies upon following Judgments. (i) 2003 (161) E.L.T. 876 (Tri. - Chennai) - Royal Enterprises v. Commissioner of Customs, (Chennai) (ii) 2004 (175) E.L.T.273 (Tri - Mum) - Stellar Modular System v. CC Mumbai (iii) 2004(175) E.L.T.828 (Tri - Mum) - Wimpex International v. CC, Nhava Sheva. 4.1 He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not find any merits in the appeals filed by the appellants. The Adjudicating Authority's order is a detailed one and has dealt on merits of the case. 6.1 As regards the lenience sought to be claimed by the appellant, we find that there is a strong force in the contentions raised by the learned counsel. It is undisputed that appellant was under judicial custody from 20-4-2007 to 21-5-2007 after being arrested and produced, by the DRI. Subsequent to his release on bail, he was under custody under COFEPOSA from 2-10-2007 to 17-10-2008. This would indicate that he has spent more than 10½ months in prison. It is also undisputed that the amount received as advance by the appellant to the tune of Rs.1.35 crores were seized and lying in department's custody for more than two years. All these facts will definitely have impact on the appellants mental and financial status. Considering all these aspects and keeping in mind the appellant's goods which he sought to export are confiscated and still lying with the department and that he has undergone severe mental and physical stress when he was in custody, we are of the view that the fine and penalty imposed on the appellant needs to be viewed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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