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2016 (7) TMI 644 - CESTAT HYDERABAD

2016 (7) TMI 644 - CESTAT HYDERABAD - 2016 (340) E.L.T. 721 (Tri. - Hyd.) - Diversion of goods meant for export to DTA - export of High Carbon Ferro Chrome (HCFC) - the exporter or CHA failed to inform the department till the matter came to light through news papers - The adjudicating authority refrained from confiscating the missing cargo as it was not physically available for confiscation. It was observed further that though M/S GMR Industries acted in a negligent manner in not insisting on we .....

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n as they came to know of the less quantity, they have initiated internal enquiry by seeking explanation from CHA, surveyor, transporters etc. They also filed police complaint. The delay in informing the department in our opinion is only an inadvertent lapse as found by the Commissioner. The goods were rightly not confiscated as they were not physically available. We find no merit in the appeal. - Decided against the revenue. - C/338/2007 - Final Order No. 30534/2016 - Dated:- 26-5-2016 - Ms. Su .....

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Agent. 2. Brief Facts: 2.1 M/S K.R & Sons (CHA) filed four shipping bills on behalf of M/S GMR Industries Ltd., respondent herein, for export of a total quantity of 4500 MT of High Carbon Ferro Chrome (HCFC) to M/S S.K. Resources Ltd., Hongkong for delivery of cargo at Pohang Port, Korea under DEPB scheme through Visakhapatnam port. After visual inspection Let Export order was granted. Thereafter, goods were passed for shipment the goods were loaded into the vessel MV A .....

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ion with diversion of HCFC intended for export. Based on news reports investigations were initiated. It was found that though export order was granted for 4500 MT, the HCFC loaded in the vessel was less. From the correspondences of exporters it was observed that exporters vide their letter dated 20.04.2005 had sought explanation from transporters, surveyors & CHA for the short shipped cargo. They had also lodged police complaint and FIR was registered. The foreign buyers S.K. Resources, Hong .....

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ction 113 of Customs Act. The officials of M/s GMR, M/s K.R & sons, M/s SGS and M/S Parekh Marine Agencies became liable for penalty under section 114 and or section 117 of the Customs Act. 2.4. Show cause notices were issued to all above and after adjudication the Commissioner passed the following order: (i) I hold that the goods valued at ₹ 76,33,079/- (Rupees Seventy Six Lakh Thirty Three Thousand and Seventy Nine Only) are technically liable for confiscation u .....

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of Section 117 of the Customs Act, 1962. (iv) I caution K.R. & Sons, Parekh Marine and Shri G.D. Patel to be careful in future. 3. The Revenue is in appeal against this order. The main grievance of Revenue is that the goods were not confiscated Though it is also contended in the grounds of appeal that department is aggrieved by non-imposition of penalty on M/S K.R. & Sons, Parekh Marine & Shri G.D. Patel, they have not been impleaded as respondents in this appe .....

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and obtained DEPB license only for actual quantity exported. The respondent has stated that short shipment was an inadvertent lapse and that there was no malafide intention. On coming to know of shortage in cargo exported they sought explanation from transporter and others and even lodged complaint. Again, the surveyors M/S SGS India Ltd., has stated that all seals were found intact. The adjudicating authority has observed that M/S SGS supervised the weighment and loading of cargo into the truck .....

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