TMI Blog2015 (2) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... is also on record that till 2006, the appellant had represented Carbonne Lorraine/Carbone of America who are manufacturers and exporters of graphite products world-wide, and were their exclusive agents for India. It is also on record that when they represented the said company, the said company used to apply for licences in respective countries and apst records of the purchasers were relevant criteria in getting licences for graphite exports. From these documents available on record, it is clear that the appellant had the knowledge about the procedures to be undertaken for export of nuclear grade material and therefore, the appellant cannot take the plea of ignorance to escape the consequences of their actions. From the evidences available on record, the malafide conduct of the appellant is clearly established. As regards the contention that the customs had allowed export of similar consignments earlier, this argument is not tenable for the following reason. First of all, there is no estoppels in a customs transaction. Merely because the Customs committed an error in allowing a transaction, that cannot be a reason for repeating the error. In Bel Pharma Ltd. case [2010 (9) TMI 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not attracted in his case and accordingly we set aside the penalty imposed on Mr. Piyush N Sanghvi, Partner of M/s Parth Enterprises. Decided against the appellant. - Appeal Nos. C/21, 22 & 43/2010 - Final Order Nos. A/1650-1652/2014-WZB/C-I(CSTB) - Dated:- 24-10-2014 - P. R. Chandrasekharan And Ramesh Nair,JJ. For the Appellant : Shri V S Nankani Mr R G Sheth, Advs. For the Respondent : Shri V K Agarwal, Addl. Commissioner, AR ORDER Per: P R Chandrasekharan: The appeal arises from Order-in-Original No: CC-(RT)41/2009 ACC dated 21/10/2009 passed by the Commissioner of Customs (Export), Air Cargo Complex, Sahar, Mumbai. Vide the impugned order, the ld. Adjudicating authority has absolutely confiscated 1135 kgs. and 35.5 kgs. of nuclear grade graphite blocks sought to be exported by the appellant M/s Nickunj Eximp Enterprises Pvt. Ltd. to Ward Commercial, Iran and Microsal International, Dubai and valued at ₹ 60,70,331/- and ₹ 1,91,422/- vide shipping bills nos. 6524973 dated 10/10/2007 and 6528077 dated 13/10/2007, respectively the provisions of Section 113(d) of the Customs Act, 1962. Further a penalty of ₹ 30 lakhs each and ₹ 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ts exported earlier + 1.17 MTs under confiscation) which is much less than the limit of 30 MTs. Therefore, the goods are not prohibited goods liable to confiscation. 3.3 The appellant had written letters to DGFT and BARC vide letter dated 13/04/2007 seeking clarification regarding the scope of SCOMET items for which they did not receive any reply. They had also sought amendment of shipping bills and recalling of Iran consignment vide letter dated 13/11/2007 followed by reminders which has not been respondent to by the Customs. In these circumstances, absolute confiscation of the goods and imposition of penalties on the appellants are not justified. 3.4. In the present case, though shipping bills had been filed, let export order allowing the exports had not been given by the Customs. Therefore, the export transaction is not complete. Hence the provisions of Section 113 (d) are not attracted. Reliance is placed on the decision of the apex court in the case of Asian Food Industries [2006 (204) ELT 8 (SC)] in support of this contention. 3.5. In the present case, there was no attempt to export and only preparation to export the goods was made by the appellant. Hence, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear transfers (exports) under the provisions of the Atomic Energy Act, 1962. As per the Specific Guidelines provided therein, there is prohibition of export for development of nuclear explosives in paragraph 1. Paragraph 1 (c) specifically provides that - (c) Transfer of the following items (prescribed substances and prescribed equipment) and related technology shall be authorized only upon formal governmental assurances from recipients explicitly excluding uses, which would result in any nuclear explosive device. (i) Source material, specified fissionable material, nuclear grade graphite and heavy waters; (ii) .................... Under the General guidelines, contained in the said resolution, it has been specifically provided that export of any prescribed substance, prescribed equipment or related technology shall be permitted only against an export licence issued in this behalf unless export is prohibited. Each and every application shall be scrutinized on case by case basis and on the merits of each case. Notwithstanding the specific guidelines as applicable, general guidelines will be applicable in all the cases and following relevant factory shall be taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the above contention. 4.f. The ld. AR further submits that there was no bona fide conduct on the part of the appellant in the attempted export of graphite blocks. The appellant had created a web of paper transactions (without supply of goods) to conceal the source of procurement of graphite blocks. According to Mr. Nickunj Shah, in the statement given on 22-10-2007 before the investigating officer, the goods were procured from M/s Parth Enterprises and they had not undertaken any quality control test and only the dimensions were checked. However, as per the statements of Mr. Piyush N. Sanghvi, Partner of Parth Enterprises, dated 2-11-2007 and 3-11-2007, Mr. Parag, Manager in Graphite Division of M/s. Nickunj had contacted him and enquired whether graphite of grade 1940 was available and he in turn, had enquired with M/s Bright Global Paper Pvt. Ltd. who had informed that they had grade Ellor + 50 grade which information was passed on to M/s Nickunj. Thereafter M/s Nickunj informed their interest in Ellor+ 50 grade and had sent the technical specifications on 21-6-2007 and requested for sending 2 samples which if found suitable would lead to order of 50 pieces. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions are enumerated in the ensuing paragraphs. 5.1 The appellants has not disputed the fact the graphite blocks sought to be exported by them are nuclear grade as certified by the BARC in their test report dated 29-11-2007. During the course of the arguments, the ld. Counsel also had agreed to this fact and confirmed that they are not disputing the test report of the BARC. Their only contention is that they were not aware that the items were restricted for export and needed a licence from the Dept. of Atomic Energy. Their only contention is that since the customs had allowed export of 2 consignments earlier, they could export upto 30 MTs of nuclear grade graphite in a period of 12 months. 5.2 From the notification NO. 47 (RE-2006)/2004-2009 dated 20-2-2007 of the DGFT, it is clear that export of nuclear grade materials to Iran is prohibited. The items, listed in INFCIRC/254/Rev8/Part I and S/2006/815 to which the prohibition/restriction applies were put on the public domain through the website of the DGFT and was accessible to the public. The said documents make it abundantly clear that Graphite having a parity level better than 5 parts per million boron equivalent and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of graphite products including specific components for nuclear and aerospace industries. It is also on record that till 2006, the appellant had represented Carbonne Lorraine/Carbone of America who are manufacturers and exporters of graphite products world-wide, and were their exclusive agents for India. It is also on record that when they represented the said company, the said company used to apply for licences in respective countries and apst records of the purchasers were relevant criteria in getting licences for graphite exports. From these documents available on record, it is clear that the appellant had the knowledge about the procedures to be undertaken for export of nuclear grade material and therefore, the appellant cannot take the plea of ignorance to escape the consequences of their actions. 5.4 Further we note that the appellant has resorted to camouflage to conceal the source of procurement of graphite blocks which they have tried to export. From the statements of Mr. Manish Patel, Director of M/s. Dimash India Pvt. Ltd. and Mr. Rasik Savla, Director of M/s Bright Global Paper Pvt. Ltd., paper transactions were created (without actual supply/delivery of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial Forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order. A wrong order/decision in favour of any particular party does not entitled any other party to claim the benefits on the basis of the wrong decision. Even otherwise Art. 14 cannot be stretched too far otherwise it would make function of the administration impossible [vide Coromandel Fertilizers Ltd. vs. Union of India Ors. AIR 1984 SC 1772; Panchi Devi vs. State of Rajasthan Ors. (2009) 2 SCC 589; and Shanti Sports Club Anr. vs. Union of India Ors. (2009) 15 SCC 705]. In Bel Pharma Ltd. case [2010 (259) ELT 10 (SC)] the Hon'ble apex Court had held that in a tax matter, the doctrine of promissory estoppels as such may not be applicable and the revenue can be permitted to take a position different from its earlier stand provided it is able to demonstrate the distinguishable features of the case. In the present case, in our c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes............................................... There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either `absolutely' or `subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others [(1970) 2 SCC 728] wherein it was contended that the expression `prohibition' used in Section 111(d) must be considered as a total prohibition and that the expression does not bring within its fold the restrictions imposed by clause (3) of the Import Control Order, 1955. The Court negatived the said contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of export and the shipping bills had been filed. Further, the goods needed a specific licence for the purposes of export which the appellant exporter herein did not have. In these circumstances, the attempt to export prohibited goods is clearly established and the provisions of Section 113(d) are clearly attracted. Therefore, absolute confiscation of the prohibited goods under Section 113(d) by the adjudicating authority cannot be faulted at all as the discretion to absolutely confiscate or allow redemption lies with the adjudicating authority under the provisions of Section 125(1) of the Customs Act. In the present case, the adjudicating authority has exercised his discretion to absolutely confiscate the goods as the goods are prohibited/restricted for export in terms of an international resolution to which India is a party. Therefore, the offence committed assumes significant dimension in the context of nuclear terrorism. Hence the absolute confiscation ordered by the adjudicated authority is well-judged and we uphold the same. 5.9 The next issue for consideration is imposition of penalty of ₹ 30 lakhs each on the appellant firm and its Director Mr. Nickunj Shah. Consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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