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TMI Blog2007 (1) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... and separate proceedings were initiated in respect of the same. 2. As a result of the above seizure enquiries were also conducted in respect of the exports already effected by M/s. Quality Apparels Exports Pvt. Ltd. and it was gathered that M/s. Quality Apparels Export had made exports of 167 consignments in which the goods were declared to be readymade garments viz. Ladies Skirts, Scarves, Ladies Pants, Ladies Dresses, Laties Tops , etc. covered by 167 Shipping Bills out of which export consignments covered by two shipping bills were not found under drawback claim but in the remaining except two for which yet another separate proceedings have been issued the goods were exported under claim of drawback amounting to Rs.14,07,45,861/-. Invoices recovered from the premises of M/s. Quality Export Apparels Pvt. Ltd. showed that the value declared in these invoices was ranging in the price of US$ 0.25 - 0.30. Enquiries from Dubai Customs also revealed that the value declared by the importer at Dubai to the Customs was similar to the second set of invoices recovered from the premises of the exporter, showing value as US$ .30 only. Further goods in respect of 47 consignments were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh and Rs. 5 lakhs (Rupees five lakhs only) on Shri N.P. George employee of M/s. Quality Apparels Pvt. Ltd. who are the present applicants before us. 4. The ld. Advocate for the applicant raised a preliminary objection stating that the Commissioner who has adjudicated the cases was not competent to adjudicate the same as while the show cause notice was answerable to Commissioner of Customs (P) Bombay, later on corrigendum was issued making the same answerable to Commissioner Air Cargo which could not have been done without issue of a notification by the Central Government in terms of Section 4 of the Customs Act, 1962. In this regard he referred to the decision of the Tribunal in the case of Consolidated Enterprises v. Commissioner of Customs (Gen.), Mumbai [2001 (137) E.L.T. 1223], wherein it was held that the jurisdiction to adjudicate the case prima facie vests in the Commissioner before whom the show cause notice was pending or in the Commissioner to whom the case was properly transferred - Once the jurisdiction is specified in the show cause notice, it could not be altered except by an order utilizing the power derived from the Section 4 of the Customs Act, 1962 for whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with annexures and relevant export documents was not furnished to them in toto. However when asked whether these invoices were specifically mentioned when the Commissioner has earlier given him an opportunity to indicate the relevant documents which were not furnished to him, Shri Doiphode submitted that there were mentioned specifically in their written submissions filed after personal hearing and not before that. 7. Shri V.M. Doiphode also pleaded financial hardship and stated that the applicants companies are out of business since 2000 after the arrest and detention of the directors under COFEPOSA, that the premises of the company have been taken over by the competent authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 and therefore they have no income to deposit the amount. However, on being asked by the Bench to show their balance sheet and the income-tax returns, they submitted that since they have no business income they have neither filed any return nor prepared any balance sheet. 8. The ld. DR however submits, that as regards the jurisdiction, the Commissioner of Customs Air Cargo is the jurisdictional of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livered in the year 2005 and is subsequent to the Tribunal decision and therefore overrides the same. Accordingly, the plea of jurisdiction is not upheld especially when there is no plea by the applicant that some prejudice has been caused to them by the change of adjudicating authority. 10. As regards the plea that the applicants have not been asked to show as to why the goods in respect of which the misdeclaration has been made in the shipping bills should not be held liable to confiscation and in the absence of liability to confiscation penalties cannot be imposed under Section 114 (i) & (ii) of the Customs Act, 1962, we find that Para 45 of the show cause notice very clearly states that the applicants have committed acts of omission and commission which have rendered the goods liable to confiscation and in Para 59 of the order there is a specific finding of the Commissioner that the directors are responsible for acts of omission and commission which acts have rendered the goods described in the shipping bills liable to confiscation and therefore when Paras 45 and 46 are read together along with other paragraphs of the show cause notice it leads to only one conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to submitted even if they do not have any business income and the fact that they have already availed about Rs. 9 crores as drawback claim for worthless goods and have further received remittance of about Rs. 4.16 crores in respect of rags exported by them, the same does not have much substance. 14. In view of the above, we hold that M/s. Quality Apparels Exports Pvt. Ltd. have not been able to make out a prima facie case in their favour and no new plea has been raised in respect of the directors who were also responsible for the mis-declaration of the goods and therefore looking into the totality of the circumstances including the financial hardship urged by them, we direct M/s. Quality Apparels Export Pvt. Ltd. to pre-deposit Rs. l crore (Rupees one crore only) as penalty and the four directors to Shri C.D.N. Singh, Shri Aditya Singh, Shri Randhir Singh, Smt. Parimala Singh to pre-deposit of Rs. 20 lakhs each (Rupees twenty lakhs only) within 12 weeks and on such deposit there shall be waiver of the pre-deposit of the balance amount of the penalties imposed on the applicants and stay recovery thereof till disposal of the appeals. Failure to comply with this direction s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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