TMI Blog2008 (2) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... vastava, Member (T) [Order per: A.K. Srivastava, Member (T)]. - This appeal has been filed by M/s. Hindustan Lever Ltd. against the Order-in-Original No. 135/2002, dated 7-5-2002 passed by the Commissioner of Customs, Nhava Sheva. The Commissioner, vide the impugned order, held the goods exported are liable for confiscation under Section 113 (i) and 113 (d) of the Customs Act, 1962. However, the goods having been exported are not available for confiscation; he imposed a penalty of Rs 3,50,000/- on the appellants under Section 114(i) of the Customs Act, 1962 and ordered that the Shipping Bill shall be assessed finally by extending DEPB benefit on the basis of the actual ascertained net weight of 3861 kgs. 2. Heard both the sides and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng bill on the basis of actual ascertained net weight of 3861 kgs. 5. After following the necessary adjudication proceedings, the Commissioner passed the impugned order as referred to above. 6. The appellants have contended that the objective of the DEPB Scheme is to neutralize the incidence of the Customs duty on the import contents of the export products. They maintained that such neutralization is being provided by way of grant of duty credit against the export products. Since the tooth brushes are exported in packed condition. The packing material are also eligible to the DEPB benefit. They contended that since the tooth brushes are invariably sold in packed condition, they, under a bona fide belief, declared the weight of tooth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Customs, Delhi reported in 2001 (127) E.L.T. 81 (Tri.) for upholding the penalty on the appellants as it has been held in the said case law that the over-invoicing of goods for exportation to get more drawback is an offence under the Customs Act, 1962. In the instant case, the appellants have deliberately shown enhanced weight of tooth brushes to get more DEPB benefit. 9. We have examined the rival submissions. We find that in the Shipping Bill, the goods have been described as 2,800 cartons of tooth brush consisting of 1680 cartons of Pepsodent Perfect and 1120 cartons of Close-Up Confident tooth brush. It is also mentioned therein that the packing has been done with each carton containing 180 units. The appellants have declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us 0.3 kg. per carton is the weight of the empty carton. Thus the gross weight of 2800 cartons is 10920 kgs. and net weight is 10,080 kgs. Presumably, the appellants claim the secondary packing of carton as 'printed boxes made of Corrugated Cardboard' for the purpose of claiming DEPB benefit, at Sl. No. 17 under Product Group 'Miscellaneous Items' i.e., 0.3 kg. per carton. We find that this was never the claim of the appellants in the shipping bill. Each bare tooth brush was packed in the primary packing, which was obviously not 'printed box made of Corrugated Cardboard'. 180 units of the tooth brush with primary packing were put in each carton. The appellants declared the net weight of the tooth brushes with primary packing material as 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to confiscation under Section 113 (i) and 113 (d) of the Customs Act, 1962 and the appellants liable to penal action under Section 114 (i) of the Customs Act, 1962. However, keeping in view the fact that the actual DEPB entitlement of the appellants was Rs. 39,382/- as against Rs. 1,02,816/-, which was sought to be availed by them, the imposition of penalty of Rs. 3,50,000/- is harsh. We feel that the ends of justice will be met if the same is reduced to Rs. 1,00,000/- (Rupees One lakh only). We, accordingly, reduce the penalty from Rs. 3,50,000/- to Rs. 1,00,000/- (Rupees One lakh only). 13. Save for the modification as indicated above, the impugned order passed by the Commissioner is upheld and the appeal is rejected. (Prono ..... X X X X Extracts X X X X X X X X Extracts X X X X
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