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M/s. Alpha Overseas And M/s. Ace International Versus Commissioner of Customs (Exports) Nhava Sheva

2016 (337) E.L.T. 577 (Tri. - Mumbai) - Confiscation in lieu of redemption fine - Imposition of penalty - Export of skimmed milk powder - prohibited by DGFT Notification No. 23(RE-2010/2009-2014 dated 18/2/2011. - Held that:- the shipping bills was presented on 10/2/2011 and 16/2/2011 and on the date of entry of the goods the goods, was not prohibited. The goods arrived at the customs area on 22/2/2011 and 23/2/2011 even if these dates are considered, on these dates also goods were not prohi .....

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113(d) was not warranted. It is also noted that at the time of opening L.C., dispatch of the goods from the factory to the port, filing of shipping bill before the customs, the goods were not notified as prohibited goods therefore it is beyond the control of exporter to avoid the dispatch of the goods from the factory to the port. Therefore, the goods cannot be confiscated. - Decided in favour of appellant with consequential relief - Appeal No. C/807,808/11 - A/87244-87245/16/SMB - Dated:- 14-3- .....

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goods on payment of fine of ₹ 15 lacs and penalty of ₹ 5 lacs on M/s. Alpha Overseas and redemption of fine of ₹ 10 lacs and penalty of ₹ 3 lacs on M/s. Ace International. 2. The fact of the case is that the appellant have filed shipping bills on 10/2/2011 and 16/2/2011 for exports of skimmed milk powder. Export of skimmed milk powder has been made prohibited by the DGFT vide notification No. 23(RE-2010/2009-2014 dated 18/2/2011 thereafter vide subsequent notification No. .....

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ought vide letter dated 25/4/2011 after gap of more than two months. The said carted goods became prohibited goods in the light of DGFT Notification No. 23(RE-2010/2009-2014 dated 18/2/2011 and the same cannot be permitted for export in light of DGFT Notification No. 37(RE-2010)/2009-2014 dated 24/3/2011 which is specifically states that only six consignments of skimmed milk powder was permitted for export which were handed over to customs for examination and export on or before 18/2/2011. As pe .....

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mposed redemption fine and penalties on the appellants therefore appellants are before me. 3. Ms. Sparsh Prasad, Ld. Counsel for the appellant submits that in the present case L/C was opened by the buyer on 15/2/2011 accordingly goods were stuffed and sealed from the factory at Haryana before Notification issued on 18/2/2011. The shipping bill was filed to the customs department on 10/2/2011 and 16/2/2011 the goods were carted on 22/2/2011 and 23/2/2011. She submits that at the time of filing th .....

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before the expiry of the L.C. ie. 30/1/2011 however the DGFT vide notification No. 37(RE-2010)/2009-2014 dated 24/3/2011 curtailed the provision of para 1.5 of Foreign Trade Policy in respect of skimmed milk powder according to which only six consignments were allowed to be exported which were handed over to customs for examination and export on or before 18/2/2011. In view of above prohibition and subsequent notification dated 24/3/2011 it is crystal clear that when the shipping bill were filed .....

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able for confiscation, therefore at the most, if the export is not permissible, the Adjudicating authority should have allowed the goods to bring back to the town and accordingly there is no question of confiscation and penalty of the said goods. 4. Shri. Kamal Puggal, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that after notification dated 24/2/2011 it was clear that goods intended to be exported by the appellant ha .....

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in respect of export goods the buyer has opened the LC much before the issuance of notification dated 18/2/2011 and the goods were also stuffed and sealed and dispatched from the factory before the issue of said notification even shipping bill was also filed on 10-16/2/2011. thereafter goods were entered into the customs area on 22/2/2011 and 23/2/2011 even on that dates appellant was entitle for transitional provisions as provided under para 1.5 of the Foreign Trade Policy, 2009-14, according t .....

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e for confiscation. I find that Ld. Commissioner confiscated the goods under Section 113(d) which reads as under: Section 113(d) in the Customs Act, 1962 (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; As regard the entry of goods for export purpose provision is under Section 50 of the Customs Act, 1962 which reads as un .....

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