TMI Blog1999 (6) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 lakhs and Redemption Fine of Rs. 2.89 lakhs on the goods exported. 3. Heard Shri K.L. Rekhi, learned Consultant for the appellants. He submits that whereas in the first order-in-original which had been remanded by the Tribunal to the learned Commissioner of Customs, the penalty had been Rs. 10 lakhs, in the present order impugned, which has been passed ex-parte, as neither of the two intimations purported to have been sent were received by the appellants (he refers to the affidavit on this count on record), the learned Commissioner has even increased the quantum of penalty to Rs. 14.45 lakhs. 3.1 With respect to the charge of non-repatriation of export proceeds, learned Consultant submits that since the export was made on DB basis through the Syndicate Bank and since the said Bank did not take effective steps to recover the entire amount involved from the foreign buyer before parting with the negotiated copies of documents sent through the bank, therefore, after protracted correspondence with the foreign buyer a Civil Suit 2236 of 95 in the High Court of Delhi has been filed by the appellants both against the foreign buyer and the Syndicate Bank, New Delhi. On the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 100% examination. Therefore, instead of any misdeclaration, the appellants vigilance concerning discovery of tampering of the cartons led to a proper amendment to the shipping bill and thus making the document reflect the truth. 3.3 With respect to the allegation of misdeclaration of value as alleged and held in the order impugned, the learned Consultant submits that firstly, since the goods were examined 100%, as even sample was drawn by the Customs as is evident from an endorsement on the shipping bill, therefore, the Department cannot allege over valuation after a period of almost 11/2 years. This is so because when the goods were permitted to be exported under the DEEC Scheme, a letter of undertaking had been given to the Department by the appellants binding themselves towards any errors or omissions for a period of 3 months. This was in terms of the then ruling Circular No. 3/92, dated 1-6-1992 which requires that such an undertaking for this specified period to be submitted. Learned Consultant submits that this undertaking, therefore, expired on 8-6-1993. He submits that the Customs have issued a letter dated 8-6-1993, but despatched on 10-6-1993 as per the postal st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount of Rs. 2.89 lakhs. If that had been the case, then the Commissioner could have proceeded in terms of the bond to appropriate the security deposit. However, this is not the case on record here. He, therefore, prays that the fine in lieu of confiscation has been imposed illegally. 5. In view of the aforesaid submissions, learned Consultant submits that since non-repatriation of export proceeds was beyond jurisdiction of Customs, since there was no misdeclaration of quantity or value proved in the order impugned, therefore, the exports were not tainted but were done in a bona fide manner and hence there was no question of imposing any penalty. 6. Heard Shri Satnam Singh, learned DR who reiterates the findings of the order-in-original. He submits that in view of Section 11 of the Customs Act, provisions of FERA are linked in this case and, therefore, it would not be correct to say that the Commissioner of Customs has no jurisdiction regarding the matter. He further submits that since on examination, the goods were found to be less than what were originally declared on the shipping bill, therefore, the allegation of misdeclaration of quantity stands proved. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue position of the facts was on the initiatives of the appellants, therefore, the charge of misdeclaration cannot be sustained in any manner whatsoever. 9. With respect to the allegation of misdeclaration of the value by over declaring it by sixty times approximately, we are of the considered opinion that the said charge also does not survive in view of the following reasons : (a) The Customs authorities did 100% examination of the goods over a period of few days in view of the reported tampering of the cartons in the Air Cargo Complex. If they had any doubt regarding the declared value, the same should have been reflected on the export documents at that time. A sample was also drawn, but no further action was taken for 11/2 years. It is extremely difficult to believe that after 11/2 years, the light suddenly gone on them in its behalf. (b) Recognising the necessity of a limitation to be prescribed after export of which no liability to keep hanging over the neck of exporters on valuation matters. The Hon ble High Court of Madras had held in the case of J.G. Exports (supra) that the Department was not free to levy charges of misdeclaration of value after a passag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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