TMI Blog2015 (1) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... be made only to M/s.Kyoei Trading Company, Japan and M/s.Radeep Services, Singapore. It is also stated that no resale of the goods permitted to nobody in any circumstances. Public Notice categorically mentioned that there must not be any intermediary and middle man. On plain reading of the Public Notice, it is clearly apparent that goods will be exported directly to both the companies and no intermediary or middle men would be allowed to enter into the transaction. We have noticed that there is no mention of name of M/s. Ocean Trading Company in the purchase order and the agreement between the parties. The word intermediary means an agent. The licences allowed to export to permissible destinations. So, the licences were issued to export Red sanders to both the companies in their permissible destination. There is restriction that the goods cannot be exported to the agent. In view of that, we do not find any force in the submission of the Ld. Advocate. It is seen that the name of M/s. Ocean Trading Company was mentioned at the time of the export of the goods in the invoices and shipping bills. This practice was followed by the APFDC in the past exports and such irregularity cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the companies for export of Red sanders. Both the companies placed purchase orders and APFDC applied for license to DGFT for export of the Red sanders. DGFT issued licenses to APFDC to export the impugned goods to M/s. Kyoei and M/s. Radeep. APFDC as per Public Notice no. 94/2006 exported Red sanders to M/s. Kyoei vide shipping Bill No. 2385733 dated 4.7.2006, 2397228 dated 18.07.2006 and 2397229 dated 18.07.2006 and to M/s. Radeep vide shipping Bill No. 2395917 dated 17.07.2006. As per Public Notice No. 7/2007 APFDCL filed shipping bill No. 2731349 dated 21.07.2007 and another shipping bill No. 2732255 dated 21.07.2007 for export of Red sanders to the quantity of 177.49 MTs each in log form to M/s. Kyoei and to M/s. Radeep respectively. On 26.07.2007, the consignments were detained by the Customs authorities, Chennai. As per Customs authorities, in the case of export to M/s. Radeep, the goods were not covered by the valid CITES permit as per the format. In the case of export to M/s. Kyoei, the shipping bill invoice showed M/s. Ocean Trading Company, Hong Kong as the buyers name and not to M/s. Koyei as mentioned in the Public Notice. The Bill of Lading shows the destination as Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to exports of Red sanders to M/s. Radeep, for confiscation of seized goods and past consignments and imposition of penalty and also to impose penalty amongst others. It has also proposed to impose penalty on Shri M. Renganathan, (Representative of M/s. Venus Shipping Agency), Shri P. Rakesh Reddy, (Authorized representative of M/s. Radeep Services, Singapore). 2.4. By adjudication order dated 20.11.2009, the Commissioner of Customs (Export-Seaport), Chennai, decided the SCN No. 11/2007 dated 13.11.07 in respect of the export of M/s. Kyoei and confiscated the goods covered under the shipping Bill No. 2731349 dated 21.07.07 under Section 113 (d) and (l) of the Customs Act, 1962, and imposed redemption fine of ₹ 60,00,000/- lakhs. He has also confiscated the goods covered under the past three shipping bills as mentioned above and also imposed redemption fine of ₹ 1,50,00,000/-. A penalty of ₹ 1,00,00,000/- each was imposed on the Vice Chairman and the Managing Director of APFDC and Shri P.V. Shashidhar of M/s. Andhra Fogaku Pvt. Ltd. under Section 114(i) and 114AA of Customs Act, 1962. He has also imposed a penalty of ₹ 10,00,000/- each on Shri G. Nathave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (iii) All the shipping Bills have been filed showing the exporter as APFDC and the consignee as M/s. Kyoei Trading Co. Ltd., Japan. (iv) Shipping Bill No. 2731349 dated 21.07.2007 was amended as per the directions of the Hon ble High Court and name of the notified party was deleted. (v) Since, there was no separate provision to mention the consignee name as well as notified party name, the customs clearing agent by mistake mentioned the name of the notified party M/s. Ocean Trading Co., Hong Kong in the shipping bill against the buyer name and address. (vi) The CITES authorities by letter dated 20.08.2007 clarified that the CITES certificate has been properly issued to APFDC. Thus, there is no violation of any condition of the licence or the Public Notice. However, the Hon ble High Court of Madras by order dated 9.10.2007 in a writ petition No. 635/2007 has permitted specific amendment and also allowed the exports of the goods. Hence, there is no irregularity. (vii) With regard to the export of past consignments during 2006, all the shipments were made after due scrutiny of the documents by the customs officers and M/s. Ocean Trading Co. Ltd. was indicated only as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CITES certificate was given to the actual quantity as mentioned in the revised invoice. APFDC is a State Government Undertaking and the appellants Vice Chairman and Managing Directors are Govt. officials. There is no malafide and there is no gain on the part of the appellants. Hence, no penal provision can be invoked against them. 4. On the other hand, the Ld. Authorized Representative on behalf of the Revenue, submits as follows:- (A) It is apparent on the face of records that the appellants exported the goods to the intermediary, which was detected by Dock Intelligence Unit (DIU) authorities and thereafter, the Honble High Court directed the amendment of shipping bills. (B) The Hon ble High Court order has no relevance with the adjudication order proceedings, as the Hon ble High Court permitted to proceed in the adjudication proceedings. (C) In the case of M/s. Kyoei Trading Company Ltd., Japan, the goods were exported to M/s. Ocean Trading Co., Hong Kong, and in the case of M/s. Radeep Services, Singapore, the amount was paid by M/s. Kamco Impex Pvt. Ltd., Singapore, who are the third party in this case. (D) Both Public Notices allowed to export the goods only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Book Titled ITC(HS) Classifications of Export and Import Items, 1st September, 2004 - 31st March, 2009 (as amended from time to time) vide Notification No.7 dated 05.05.2007 the Director General of Foreign Trade hereby prescribes the following procedures to be followed for export of Red Sanders in the form of log procured through auction from the Government of Andhra Pradesh :- (i) Exporters who obtained Red Sanders Wood in the form of log through auction from the Government of Andhra Pradesh only may apply for grant of export licence. (ii) The prospective Exporters shall submit their application as per Aayaat Niryaat Form to the DGFT(Headquarters Office), Udyog Bhawan, New Delhi. (iii) The application shall be accompanied by documents evidencing procurement of Red Sanders Wood in the form of log from the Government of Andhra Pradesh. (iv) Export shall be made to M/s. Kyoei Trading Company Ltd., Japan and M/s. Radeep Services, Singapore. (v) One time exemption will be applicable for a period of 1 month from the date of issue of export licence. (vi) No re-sale of the Red Sanders logs will be permitted to anybody under any circumstances. (vii) There must not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) The necessary license for the export must be obtained from GOI as per rules and procedure under EXIM policy; iii) No resale of the RS Wood logs will be permitted to anybody under any circumstances; iv) The above clearance is valid for a period of one month only from the date of issue of license by DGFT, New Delhi; v) The permission is subject to necessary clearance under CITES as per procedure as Red Sanders is in Appendix-II of the CITES. 9. Both the Companies issued purchase orders to APFDC. The purchase orders indicate that the shipment details and destination would be Shanghai, Hongkong, Tokyo in the case of M/s.Kyoei Trading Company, Japan and the shipment details and destination would be Singapore, Hongkong, Malaysia in the case of M/s. Radeep Services, Singapore. The supply of Red sanders to M/s. Kyoei Trading Company, the adjudicating authority observed that the Public Notice permitted one time export of Red sanders by APFDC to both the companies. The conditions mandated that the Red sanders in log form should not be resold any intermediary in the transactions and should have CITES clearance. It is observed that the goods were sent to M/s. Ocean Trading Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Environment, the Director General of Foreign Trade and Ministry of Commerce of the Central Government and CITES certificate are require, which were duly complied with by the petitioners and the respondent Nos.4 to 6. Of course there is a typographical error found in the Shipping Bill wherein instead of mentioning the name of the consignee, his agents name and address was wrongly typed, which is probably the reason for initiating action on the part of the respondent Nos. 1 to 3, which resulted in stopping of the export. The said reason cannot be a valid reason to prevent the export, as the petitioner and the respondent Nos. 4 to 6 have duly complied with the other legal requirements for export. 8. The learned Additional Solicitor General as well as Assistant Solicitor General pointed out that if the petitioner is prepared for the export of Goods to Tokyo instead of Hong Kong, their claim can be considered by the Court. This Court is of the view that both the Governments, namely the Union as well as the State Government besides the CITES gave permission to take the Red Sanders Wood to Hong Kong and therefore, it is unnecessary for the respondent Nos. 1 to 3 to insist the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in both the cases there is irregularity in so far as CITES certificates were not valid at the time of export of the subject goods which was revalidated by the order of the Hon ble High Court. Thus, it is clearly established that the appellants exported the goods in violation of the condition of the Public Notice as well as licences and therefore, confiscation of goods under Section 113(d) (l) of the Customs Act, 1962. The DIU officers detected the violation of the Public Notice and the licences. The Hon ble High Court had directed to process adjudication proceedings and the Hon ble Court also directed to furnish bank guarantee in respect of redemption fine and penalty. So, we do not find any merit in the submission of the Ld. Advocate. 16. We find from the impugned order dated 20.11.2009, Shri T. Appi Reddy, Deputy General Manager of M/s. Andhra Pradesh Forest Development Corporation Limited, in his statement stated that he was the authorized signatory for export formalities. ShriP.V.Shashidhar of M/s. Andhra Fogaku Pvt. Ltd., had requested the APFDCL to include the name of M/s. Ocean Trading Company, Hong Kong as the notified party. It is also stated that there was no refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Public Notice and the condition of licences. They cannot absolve their responsibility and liability for violation of conditions of Public Notice and Licences. Therefore, penalty on the Chairman and the Managing Director of APFDC and Shri P.V Shashidhar, Managing Director, M/s. Andhra Fogaku Pvt. Ltd. are warranted. The Ld. Advocate submits that without prejudice, amount of redemption fine and penalty are excessive. 20. Regarding the appeal filed by M/s. Kyoei Trading Co. Ltd., we find that they have not intervened during the adjudication proceedings at any stage and therefore, the appeal filed by M/s. Kyeoi Trading Co. Ltd. is not maintainable before this Tribunal. 21. Shri T. Suresh Kumar, an employee of M/s. Andhra Fogaku Pvt. Ltd., Hyderabad, had acted on the basis of the direction of Shri P.V. Shashidhar of M/s. Andhra Fogaku Pvt. Ltd., Hyderabad. Shri G. Nathavel, of M/s. Seaways Shipping Limited, Chennai, and Shri M. Renganthan of M/s. Venus Shipping Agency, both CHA filed documents as supplied by the APFDC. Shri P. Rakesh Reddy, authorized agent of M/s. Radeep Services, Singapore, filed documents as per the direction of M/s. Radeep. There is no material av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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