TMI Blog2010 (4) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... asserole (export goods). The exports in question were made in nineteen consignments, some of them in February 1997 and others in March 1997. Investigations made by officers of the DRI, Mumbai, indicated that the appellant had inflated the net weight of polypropylene to the extent of around 35% to avail extra DEEC benefit. On the basis of such information, three containers were identified and it was found that the export goods had been examined and stuffed in these containers at the factory of the exporter under Central Excise supervision and that the shipping bills were processed at Jawahar Customs House on the basis of the report of the proper officer of Central Excise. The relevant shipping bills and other export documents were scrutinize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant and their Director rendered the export goods liable to confiscation under Section 113 of the Customs Act, 1962 and also rendered themselves liable to penal action under Section 114 of the Act. In relation to 17 shipping bills, it appeared that Customs duty of over Rs. 9.5 lakhs had been evaded by the exporter on the raw material used in the manufacture of the export goods. In respect of the remaining two shipping bills, duty of Rs. 85,932/- appeared to have been evaded on the raw material used in the manufacture of the export goods. According to the DRI, all the export goods were liable to confiscation under Section 113(d) of the Customs Act. On the basis of findings of the DRI, the Commissioner issued a show-cause notice t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai under Section 114(i) of the Customs Act, 1962. In determining the penalty, I have taken note of the fact that the offending goods that were attempted to be exported which become liable to confiscation are not available for confiscation. (f) I impose a penalty of Rs. 4,70,957/- on the exporter M/s. Cello Thermowares Ltd., Mumbai, in terms of Section 114A of the Customs Act, 1962. (g) The amount of Rs. 4,11,443/- paid voluntarily at the time of investigation shall be adjusted towards the dues determined. 2. The present appeal is directed against the above order. After hearing both sides, we note that the ld. Counsel seeks to draw a distinction between exports made in February, 1997 and those made in March, 1997. In this conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act in the absence of wilful misstatement or suppression of facts by the appellant. He has also pointed out that, where a penalty was imposed under Section 114A of the Act, it was not open to the adjudicating authority to impose any penalty on them under Section 114 of the Act. In this connection, he has referred to the fifth proviso to Section 114A, which reads thus : Provided also that where any penalty has been levied under this Section, no penalty shall be levied under Section 112 or Section 114 . 4. The ld. SDR submits that, now that the duty liability stands conceded, the appellant cannot deny that they had claimed undue benefit of the exemption notification in respect of a part of the imported raw material. They must have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hipments made in March, 1997. As rightly pointed out by the ld. SDR, no evidence is required in support of demand of duty on the differential quantity of raw material in relation to the exports made in March, 1997. However, there being no admission of duty liability in respect of any quantity of raw material used in the goods exported in February, 1997, the burden was on the Revenue to establish that any quantity of such raw material imported by the appellant had been utilised in a manner other than what was prescribed under the relevant Advance Licences coupled with Notification No. 79/95-Cus. But we have not been able to find any clear allegation to this effect in the show-cause notice. Though the ld. SDR has claimed that the entire raw m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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