9911796707
TMI Blog2012 (5) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) of his order. In the department s appeal this portion of his order is challenged, on the ground that the same adjudicating Commissioner had taken different view in respect of two other cases of M/s. Charminar Exports and M/s. Shine Global Houseware Ltd. 3. A cross-objection has been filed by SI against the departmental appeal. The Ld. Advocate appearing for the respondent SI states the following:- (a) SI had obtained three advance licences bearing Nos. 0410059031/5/03/00 dated 29.06.04, 12816/0410059033/05/03/00 dated 29.06.04 and 12697/04/21/040/00102/AM05 dated 25.05.04. But they have not made any imports under these three advance licences. These licences have lapsed long ago and they do not intend to import any goods under the same. (b) The two cases cited by the department were different as imports were made under those advance licences and hence the duty demands and penalties were confirmed in those cases. (c) Even in those cases, the orders were not sustained on appeal to the Tribunal and the matters were remanded for fresh adjudication. (d) In respect of 17 Shipping Bills, the goods were already shipped and therefore, there can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s composed of non-magnetic stainless steel confirming to AISI304 grade . Therefore, the test reports are very clear and categorical with regard to the grade of the SS used in the manufacture of utensils/ kitchenware that were exported in the past. In the absence of any report contrary to the findings of Metallurgical expert, the bald allegations, that goods exported in the past were not made of AISI 304 Grade are not sustainable. 24. Further as regards the charge of interchanging the samples, I find no material or documentary evidence has been put forth to support the charge. Neither any such duplicate/substituted sample has been seized nor any contrary test report has been produced. The Appraising Officer who examined the goods and took samples has very clearly detailed the procedure followed in sampling and testing. During cross examination Shri R. Viswanathan, Apprising Officer, Chennai Customs has stated that he worked in the Binny CFS during the months of June/July 2004 as an Appraising Officer and dealt with the export of Utensils. He also confirmed the signature found in Test Memo Nos. 1739/2004, 1740/2004 and 1766/2004 and stated that for drawal of samples and testi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... past exports, any material evidence of sample changing, I find the charge misdeclaration of Grade/Quality for past 17 consignments and proposed to invoke penal provisions against the Managing Partner are not sustainable and therefore I do not hold that as proved and I reject the same. 6. The department has not challenged these findings. The only ground taken by the department is that the same adjudicating Commissioner has taken a different view in two other cases. As pointed out by the Ld. Advocate, the other two cases were different and in those cases, duty benefits were taken by making duty free imports under the respective advance licences, whereas in the present case, SI have not made import of any goods under the three advance licences listed earlier and since the said licences have expired, the same cannot be used. As a result, the finding of the adjudicating Commissioner that the goods exported under 17 Shipping Bills were correctly declared under the DEEC scheme is of no material consequences. The review order passed by the Committee of the Chief Commissioners did not provide any grounds on the basis of which a different view can be taken in respect of 17 Shipping B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Punjab and Haryana High Court in the case of CC, Amritsar Vs. Raja Impex (P) Ltd. 2008 (229) ELT 185 (P & H), which held that Section 125 of Customs Act, 1962, is applicable only in those cases which have been cleared by concerned authorities subject of furnishing undertaking/bond etc., and where goods were cleared without execution of any bond/undertaking by the assessee, redemption fine cannot be imposed. 10. The Ld. DR supports the order of confiscation and imposition of fine and penalty on the ground that the IE Code of SI was suspended consequent to the detection of misdeclaration and they could not have exported the goods without being allowed by the customs. The DGFT authorities restored the IE code of the appellants on the condition that they should only export under free Shipping Bills. This is the back ground in which the two impugned Shipping Bills were allowed under free Shipping Bills. However, that does not obliterate the fact of misdeclaration on the case for confiscation and imposition of fine and penalty. 11. I have considered the submissions from both sides in respect of two Shipping Bills. The fact that there was misdeclaration in respect of g ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
