TMI Blog2006 (3) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... -1-1998, the jewellery items, which were about to be flown by Lufthansa Air Cargo Flight, were intercepted at the export terminal of the Air Cargo Complex Bangalore for detailed examination. The inventory of the items to be exported was taken. It was found that there were discrepancies in quantity, purity and weight between the declaration and the test results on the samples of the items to be exported. The declared purity of the jewellery item was 22 carats but the actual purity as ascertained by test was much less than 22 carats. Samples were tested in National Aerospace Laboratories (M/s. NAL), Bangalore. Statements of various persons were taken under Section 108 of the Customs Act. Prima facie, it was found that there was a shortage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962. Further penalties were imposed on the following persons under Section 114 (i) of the Customs Act, 1962 as given below: 1. Shri Rajesh Metha - Rs. 2,00,000/- 2. Shri Prashant Mehta - Rs. 1,00,000/- 3. Shri Mahesh Mehta - Rs. 1,00,000/- 4. Shri Gautham Chand - Rs. 1,00,000/- It is seen that the first appellant had already deposited Rs. 2,00,000/-during the course of investigation. The appellants strongly challenge the impugned order. Hence, they have come before this Tribunal for relief. 3. Shri Kiran K. Javali, the learned Advocate appeared for the appellants and Shri K.S. Bhatt, the learned SDR for the Revenue. 4. The learned advocate urge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, New Delhi - 2000 (124) E.L.T. 1105 (Tribunal), it has been held that charge of clandestine removal of 12 kgs. of gold pleaded as operational loss during the manufacture of jewellery is not sustainable in the absence of any evidence in support of clandestine removal. (vi) In the case of Vorin Laboratories Ltd. v. CC, Chennai - 2004 (168) E.L.T. 107 (Tribunal) = 2004 (92) ECC 443 (Tri.), it has been held that when the bond is not in existence and the export obligation has been fulfilled, the question of confiscation in the matter does not arise and hence the order of confiscation and imposition of fine are set aside. (vii) The appellant is a reputed company who are in business for more than 10 years. It does not stand to reason that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased. (xiii) The amount of percentage of alleged violation in the totality of exports would be 0.36%, which shows that the same could have been due to human error alone, and not a wanton attempt to mis-declare. (xiv) There were 8907 pieces of Jewellery checked and out of those only 518 pieces were alleged to be not of 22 carats. Out of these 518 pieces, only 25 pieces were selected and subjected to further testing. In a totality of 62,545.500 gms of gold jewellery, 2016.900 gms. was alleged to have been short shipped due to purity difference. The alleged difference works out to less than 3.25%. The alleged duty benefit on this difference works out to less than 0.40% on the export value of the seized goods. (xv) The National Aerospa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) The erstwhile Notification No. 144/93-Cus., dated 28-06-1995 envisages a continuous obligation by the importer to execute a bond to the AC/DC binding themselves to pay on demand, duty on the quantity of gold representing the difference between the quantity issued and that contained in the exported jewellery or articles. (iv) The learned SDR stated that the case-laws cited by the appellants are distinguishable and cannot be applied to the present case. The present case mainly relates to the mis-declaration of quantity and description. As regards the Hy-grade Pellet s case, it was stated that the department has appealed to the Apex Court and the Tribunal s decision is contrary to the principles laid down by the Apex Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the DGFT of the alleged violation by the appellants and also the pendency of the customs investigations. We are also surprised that when the adjudication was pending before the Commissioner, the Assistant Commissioner had already cancelled the legal undertaking. In the light of the case-laws cited especially, the Hy-grade Pellets decision, we are of the view that the demand of duty after the issue of discharge of Export Obligation cannot be sustained. Even though the department has gone in appeal against the above mentioned case, the Apex Court has not stayed the operation of that decision. Hence, we are bound by the ratio of the above decision and also the other decisions cited. Since no duty can be demanded in view of the above legal poi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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