2006 (9) TMI 48

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..... g, storing and export of fish and fish products to various countries. Under the DEPB Scheme, the appellants exported fish products claiming DEPB rate at 4% or 5%. They had given declaration that the chemicals as per Standard Input Output Norm (SION) have been used. A very detailed investigation was carried out by the Officers of DRI. It appeared that the appellants had mis-declared the use of chemicals/preservatives with a view to get higher DEPB credit. Consequent to the investigations, Show Cause Notice was issued for restricting the DEPB credit to 2% and recovering the excess credit availed by the appellants. The Commissioner, after completing the formalities, passed a very detailed order, which is under challenge. In the impugned order, .....

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..... view of the above, the Advocates requested the Bench to allow the appeals. 5.The learned JDR reiterated the OIO. 6.We have gone through the records of the case carefully. As pointed out by the learned Advocates, this Bench has held that the DEPB credit can be varied only by the DGFT authorities and not by the Customs. In any case, pursuant to DRI investigations, the DGFT authorities issued Show Cause Notice and an OIO dated 11-5-2005 has been passed by the Joint Director General of Foreign Trade. The Joint Director General, after a detailed examination, has given the following finding and dropped the proceedings. "It is well established with record that M/s. Baby Marine Exports, has used chemicals though very meager in quantity in their .....

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..... xported goods under Sl. No. 1 of the Product Code 66 for which the DEPB rate is 2% of the FOB value instead of 10%, as claimed and availed by the exporter. He demanded an amount of Rs. 2,14,12,105/- under Section 28(1) of the Customs Act 1962 read with Notn. No. 34/97-Cus. dated 7-4-1997. Interest under Section 28AB was demanded. Penalty of Rs. 20,00,000/- under Section 114(i) of the Customs Act, 1962 was imposed. Further, a penalty of Rs. 3,00,000/- under Section 117 ibid was imposed. A penalty of Rs. 5,00,000/- was imposed under Section 114(i) on Shri K.C. Babu, Managing Partner. The impugned order is strongly challenged by the appellants. 8.The learned Advocates brought to our notice that the issue was referred to the DGFT and the DGFT, .....

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