TMI Blog2007 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... orities found shortage of quantity and value of goods vis-a-vis the quantity and value entered in the relevant shipping bills. After gathering information from Srilanka, the Indian investigating agency, DRI, conducted investigations into the above exports of the appellants and issued a show-cause notice to them proposing to recover the DEPB credit availed by them in respect of the exports, under Section 28 of the Customs Act, as also to the goods under Section 28 of the Customs Act, as also to confiscate the goods under Section 113 of the Customs Act and to impose penalty on the exporter under Section 114A of the Act. These proposals were contested by the party on numerous grounds. In adjudication of the dispute, learned Commissioner of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not invocable, there was no question of invoking Section 114A for imposing penalty on such an exporter; that the goods which had already been exported was not liable to be confiscated under Section113 and, for that matter, no redemption was imposable that the Commissioner had travelled beyond the scope of the show-cause notice to impose penalty on the appellants under Section 114 of the Act. Learned Counsel further pointed out that the licensing authority had also issued a show-cause notice to the appellants in the same matter under the relevant provisions of the Foreign Trade (Development Regulation) Act, 1992 on the basis of a report received from the DRI. The Joint Director General of Foreign Trade, the adjudicating authority under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms v. Suresh Jhunjhunwala - 2006 (203) E.L.T. 353 (S.C.), the powers of Customs authorities to proceed against exporters who overvalued goods for claiming undue DEPB benefit had been recognized by the Apex Court. It was also submitted that, in the case of R.A. International v. Union of India - 2005 (192) E.L.T. 101 (Cal.), the Calcutta High Court ousted DGFT from exercising jurisdiction over fraudulent exports under DEPB scheme and recognized the jurisdiction of Customs authorities to deal with such matters. Learned SDR further submitted that, where it was found that the export goods had been overvalued for the purpose of undue DEPB benefit, the goods became liable for confiscation under Section 113(d) of the Customs Act and the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Bang.). It is a matter of record in the present case that the proper officer in the Directorate-General of Foreign Trade initiated proceedings against the appellants for recovery of the DEPB credit in question from the appellants and that, in adjudication of the case, the Jt. DGFT cancelled the DEPB scrips/licences and directed the party to pay an amount of Rs. 3 crores under Section 11(2) of the Foreign Trade (Development Regulation) Act, and imposed on them a penalty of Rs. 15.00 lakhs. Aggrieved by the Jt. DGFT's order the party is in appeal to the appellate authority under the Foreign Trade (Development Regulation) Act. Learned Counsel has pointed out that the above amount of Rs. 3.07 crores includes the amount of Rs. 1.76 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re found by the Srilankan Customs authorities. But no document or other record of. The Srilankan customs authorities evidencing such shortage of quantity and value of the goods covered, by the 56 Shipping Bills is available on record, nor was any such document furnished to the appellants by DRI or the adjudicating authority. In the circumstances, it is difficult to consider the said exports to be 'fraudulent'. The High Court's ruling is applicable to fraudulent exports only. 7. The Commissioner imposed a fine in lieu of confiscation of the goods Such a fine could be imposed only where the confiscated goods were available for redemption, which is not the case here Hence the redemption fine imposed by the Commissioner is liable to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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