TMI Blog2010 (2) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... 942/2010 - Dated:- 18-2-2010 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY : Shri V.M. Doiphode, Advocate, for the Appellant. Shri U. Raja Ram, JDR, Advocate, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - M/s. Surya Kiran International Ltd., (SIL for short), the appellant herein had filed a Shipping Bill No. 6042551 dated 8-8-2008 for export of "100% cotton denim garments". The quantity declared was 16,000 pieces and the value Rs. 56,48,617.84. SIL claimed drawback of Rs. 6,21,348/On receipt of information that SIL over-valued the garments exported to avail undue drawback, officers of the Department visited the ICD Hyderabad on 16-8-2008. The goods under expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He imposed a penalty of Rs. 5,00,000/- on the CHA and Rs. 1,00,000/- on the freight forwarder under Section 114 of the Act. In the appeal before the Tribunal, while seeking to vacate the impugned order, the appellants SIL have raised the following grounds. Several of these arguments had also been raised before the Commissioner. 2. On 23-4-2008, the impugned goods had been inspected by the foreign buyer, M/s. Global Impex Pvt. Ltd., UAE and it had placed purchase order at an average price of USD 8.5 per garment. The purchase order was for the entire stock lot and that the variation of 415 pieces found was 2.5%. The Commissioner had not appreciated the relevant facts. He had sermonized that the appellants should have established a system of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be damaged with any mala fide intention. No expert opinion was obtained on the nature of the export goods; no representative samples were drawn to come to any conclusion on the condition of the goods. Its value was not determined based on any expert opinion. The Commissioner had wrongly rejected the declared value in respect of 6531 pieces. They had realized the full export value quoted in the Shipping Bill. 2.3 The Commissioner had erred in ordering confiscation of 16415 pieces under Section 113(d) of Customs Act as the consignment was ultimately exported and there was no prohibition to export stock lot. Further, Section 113(h)(ii) was not applicable in respect of 16,000 pieces which matched the description entered in the Shipping Bill. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the description as stock lot or, fit for use or damaged without any mala fide intention to unduly avail the draw back, benefit to the tune of Rs. 6,21,348/-. The entire consignment was stock lot. The goods had been inspected by the representative of the buyer M/s. Global Impex Private Ltd., UAE on 23-4-2008. The unit price of USD 8.5 was mutually agreed. The workers who were not educated had wrongly counted 16,415 pieces as 16,000. The excess constituted only 2.5% variation. There was no misdeclaration as regards description or value. We find that the Commissioner rejected the explanation advanced by the appellants for the discrepancies found and held that even if the consignment comprised stock lot/seconds, invoices and the Shipping B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of civil obligation by the appellant therein justified imposition of personal penalty. He relied on the judgment of the Apex Court in Gujarat Travancore Agency v. Commissioner of Income Tax [1989 (42) E.L.T. 350 (S.C.)] in support of imposing penalty even in the absence of mensrea. He particularly relied on the following statement in corpus Juris Secundum quoted by the Apex Court. "A penalty imposed for a tax delinquency is a civil obligation, remedial and coercive in its nature, and is far different from the penalty of a crime or a fine or forfeiture provided as punishment for the violation of criminal or penal laws." 7. From the facts of the case and the impugned order, we are not able to conclude that the exporter had mis-decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the description of the goods, we find that the description '100% cotton denim garments' cannot be held to be wrong description of the impugned goods. Therefore the charge of misdeclaration of description, quantity and value of the export goods fails. In the circumstances, we vacate the order of confiscation under Section 113 of the Act as not justified. Order of confiscation under Section 119 of the Act cannot be upheld as the same is not backed by a matching proposal in the show cause notice. We also find that the judgments relied on by the Commissioner do not cover the facts of the case. Barring an inadvertent excess of 415 pieces of garments we do not find any misdeclaration in the Shipping Bill. This mis-match does not justify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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