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2015 (4) TMI 279 - SUPREME COURT

2015 (4) TMI 279 - SUPREME COURT - 2015 (318) E.L.T. 610 (SC) - Imposition of penalty - Overvaluation of goods - Fraudulent availment of DEPB Credit - Held that:- Goods were liable for confiscation under sub-section (d) of Section 113 of the Act, and therefore penalty could be imposed under Section 114(I) of the said Act, next question that arises for consideration is as to whether on the facts of this case penalties were rightly imposed by the Commissioner . Though this aspect is not considered .....

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ewise, insofar as respondent no.2 Mr. Rakesh Mishra is concerned, the only allegation against him is that he had supervised the stuffing of the goods at ICD Varanasi and received the payment. Only on this allegation, it cannot be attributed that he became party to the over invoicing of the goods. Penalty in respect of these two respondents, therefore, has to be set aside.

As far as respondent no.3 is concerned, he was working as Superintendent ICD - The allegation which has been estab .....

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Appeal No. 4341 of 2004 - Dated:- 27-3-2015 - A. K. Sikri And Rohinton Fali Nariman , JJ For the Appellant : Mr. K Radhakrishnan , Sr.Adv . Mr. Rupesh Kumar, Adv. Ms. Sunita Rani Singh, Adv. Mr. B. Krishna Prasad, Adv. For the Respondent : Mr. Asayush Agarwala , Adv. Mr. Aman Kalra , Adv. Mr. Pramod B Agarwala , Adv. Mr. Anil Shrivastav , Adv. ORDER In C.A.Nos.2620 -2622/2004 One M/s. Yash Export had exported consignment of PVC soles and the valuation which was entered and declared for export o .....

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iscation of the aforesaid goods under Section 113(d) of the Customs Act, 1962. Insofar as these three respondents are concerned, they were also roped in with the allegations that they had colluded with M/s. Yash Export in mentioning the inflicted figure in the invoices. Order-in-Original dated 29.4.2002 was passed, after completing the required formalities confiscating the goods under Section 113(d) of the Act. At the same time option was given to the exporters to seek release of those goods on .....

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f one Mr. Sudhir Malik. Respondent No.3 -Rakesh Srivastava was working as Superintendent of ICD, Varanasi. These respondents filed appeals against the order of the Commissioner before the CESTAT. CESTAT has, Vide impugned judgment dated 12.11.2003, set aside the order of the Commissioner on the ground that as it was a case of over invoicing, action under Section 113(d) of the Act for confiscation of the goods could not have been taken for the aforesaid default/breach on the part of the exporter. .....

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kash Bhatia vs. Commissioner of Customs, Delhi (2003) 6 SCC 161. He also brought to our notice the judgment of the CESTAT itself which is rendered in the appeal that was filed by the exporter in the instant case challenging the Order-in-Original on the ground that there could not have been confiscation under clause (d) of Section 113 of the Customs Act and the said appeal was dismissed by the Tribunal following the aforesaid judgment in the case of Om Prakash Bhatia and the judgment Yash Exports .....

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reproducing paras 18, 19 and 20 of the said judgment which read as under: 18. From the aforesaid provisions, mainly, Section 2(41) read with Section 14 of the Act and Section 18 of the Foreign Exchange Regulation Act, 1973, it is crystal clear that :- (a) The exporter has to declare full export value of the goods (sale consideration for the goods exported ). (b) The exporter has to affirm that the full export value of the goods will be received in the prescribed manner. (c) If the full export va .....

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nd the price is the sole consideration for sale or offer for sale. 19. To the same effect, Rule 11 of the Foreign Trade (Development and Regulation) Rules, 1993 provides. This Rule is to be read along with Section 11(1) of the Foreign Trade (Development & Regulation) Act, 1992, which inter alia provides that no export or import shall be made by any person except in accordance with the provisions of this act, the rules and the orders made thereunder and the export and import policy for the ti .....

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rtify that the quality and specification of the goods as stated in those documents are in accordance with the terms of the export contract entered into with the buyer or consignee in pursuance of which the goods are being exported and shall subscribe to a declaration of the truth of such statement at the foot of such bill of entry or shipping bill or any other documents." 20. Hence, in cases where the export value is not correctly stated, but there is intentional over-invoicing for some oth .....

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g in law and therefore the same has to be set aside. Once, we find that goods were liable for confiscation under sub-section (d) of Section 113 of the Act, and therefore penalty could be imposed under Section 114(I) of the said Act, next question that arises for consideration is as to whether on the facts of this case penalties were rightly imposed by the Commissioner . Though this aspect is not considered by the Tribunal it may not be necessary to refer the case back to the Tribunal for this pa .....

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