TMI Blog2016 (11) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced by the importer but the less payment by the Sunshine Overseas importer was on account of short delivery of goods. Therefore, the market enquiries conducted in respect of goods which were exported through the said three Shipping Bills is not established to be correct since importer in foreign country has remitted full amount for the quantity received. Further, we find that for the valuation of goods which were exported from 02-02-2004 to 24-06-2008, the Show Cause Notice has resorted to Section 14 of Customs Act, 1962. Section 14 of Customs Act, 1962 empowers valuation of export goods and export goods is defined at Clause 19 of Section 2 of Customs Act, 1962 as the goods which are to be taken out of India to a place outside India. It clearly establishes that the goods which are presented for export are export goods and goods which are exported do not satisfy the definition of export goods. Therefore, provisions of Section 14 of Customs Act, 1962 are not applicable to goods which have already left the shore of Indian Territory and the export of which has already taken place. Therefore, we hold that all the allegations and findings in respect of goods which were exported du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. As per the declaration under the said Shipping Bills there were total 1011 rolls of carpets put together in said three Shipping Bills. Thus, three Shipping Bills put together had declared FOB value of ₹ 2,45,11,179/-. The invoices connected with the said Shipping Bills are respectively 1514/2008, 1515/2008 1516/2008, all dated 04/04/2008. The said Shipping Bills were assessed at ICD, Bhadohi and the examination was conducted by Superintendent, ICD, Bhadohi cleared by him by giving let export order. The consignment was carried in Container No. ESPU-8012774. The said container contained the goods covered by said three Shipping Bills and it was cleared by ICD, Bhadohi on 07/06/2008 and the gateway port for the said container was JNPT, Nhava Sheva. The custodian at ICD, Bhadohi was CWC. On 20-06-2008 the said container lying at Hind Terminals, CFS, Nhava Sheva was opened by DRI Officers of JNPT, Nhava Sheva in presence of two independent witness, partner of M/s Kaka Carpets and representative of Shipping line M/s Emirates Shipping line. At the time of opening of the said container on 20-06-2008 the container was having Customs bottle Seal No. 003759 affixed on it which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping Bills dated 07-06-2008, (ii) Total Square meters of carpets declared in respect of goods presented for export through said three Shipping Bills No. 702,703 704 all dated 07-06-2008 (iii) Value of similar goods exported for the period from 2004-05 to 2008-09 to examine whether drawback already disbursed was in excess of their admissibility, (iv) The role of the officers who were assigned the duty of examination, assessment and clearance of export cargo. 3. On the basis of actual counting of carpets on 24 25-06-2008, it appeared to Revenue that 63 rolls out of 1011 rolls of carpet declared to have been presented for export through Shipping Bills No. 702,703 704 all dated 07-06-2008 were short. 4. On the basis of samples drawn during examination of carpets on 24 25-06-2008 market enquiries were conducted by DRI Officers and it appeared to them that when they arrived at value of goods declared in said Shipping Bills determined under Rule 5 of Customs Valuation (Determination of Export Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962, the value should have been ₹ 6,47,173/- in respect of said Shipping Bill No.702/DBK/2008 instead of declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented for export through the said three Shipping Bills. It appeared to Revenue that Shree Rajeev Ranjan, Assistant Commissioner, ICD Customs, Bhadohi failed to discharge his duties sincerely and hence became liable to penalty under Section 114 of Customs Act, 1962. 7. It appeared to Revenue that Shri Pawan Kumar Singh, Superintendent scrutinized Examination Order, Examination Report, Shipping Bills, Invoices other documents and stuffing conducted was under his supervision in the presence of CWC Officers, representatives of shipping line and exporter. It appeared to Revenue, further, that export was permitted by Shri Pawan Kumar Singh, Superintendent after superficial examination of documents only and thus he failed to discharge his duties. Further, in respect of Shri S.K. Vishwarkarma , Inspector; it appeared to Revenue that Shri S.K. Vishwarkarma did not follow the circular and instructions issued from time to time and export was permitted after superficial examination only and, therefore, he failed to discharge his duties. Similarly, it appeared to Revenue that Shri Ajay Shukla, Inspector failed to discharge his duties of proper appraisal of the Shipping Bills in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered, (vii) Why penalty under Section 114(iii) Section114AA of the Act should not be imposed on M/s Kaka Carpets, Yadavendra Kumar Roy, partner of M/s Kaka Carpets and Smt. Rita Roy partner of M/s Kaka Carpets (viii) why Bank Guarantee of ₹ 20 lacs 50 lacs furnished by M/s Kaka Carpets in respect of provisional release of seized goods and for release of drawback amount of ₹ 1.38 in respect of past exports should not appropriated and adjusted against dues, (ix) Why penalty under Section 114 of Customs act, 1962 should not be imposed on Shri Birendra Singh, Manager; Shri Rajendra Kumar, Superintendent; Shri Pawan Kumar Singh, Superintendent; Shri Ajay Shukla, Inspector; Shri S.K. Vishwarkarma, Inspector; M/s Kataria Carriers; M/s Cleared Shipping Forwarders and Shri Rajeev Ranjan, Assistant commissioner, (x) Why value of the export goods exported during the period from 02-02-2004 to 24-06-2008 covered by Annexure-8 of said Show Cause Notice should not be determined at ₹ 48,30,47,470/- under Rule 5 of Customs (Valuation of Export Goods) Rules, 2007 and Section 14 of Customs Act, 1962, (xi) why drawback amount admissible should not be determined at ₹ 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny goods the market price of which is less than the amount of drawback due thereon. The said provision is not applicable in their case because the purported market enquiry to determine PMV is patently erroneous. (g) In respect of shortage of 63 rolls it was stated at the time of examination of goods in ICD, Bhadohi no discrepancies were noticed and that at the time of sealing of container at ICD, Bhadohi, containers contained 1011 rolls. (h) All the payments were made to and received by the parties were through account payee cheques RTGS fund transfer. If carpet is supplied to buyer A and if he supplies the carpets to buyer B , then buyer B gives Weschel to buyer A and the same Weschel is endorsed by buyer A on the backside and buyer A handover it to the supplier of the goods that is noticee. The payment for the goods supplied stands effected by buyer A when such Weschel is presented by exporters bank to the buyer s bank and buyer s bank honours the same and releases payment which is received and credited in exporters account. 10 Shri Pawan Kumar Singh, Superintendent submitted before the Original Authority that the allegations against him in para 113 of impugned Show Cause No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d drawback could have been detected and that his inaction Shri Pawan Kumar Singh allowed the misdeclared goods to be loaded. 14. In respect of Shri S.K. Vishwakarma Original Authority held that had Shri S.K. Vishwakarma discharged his duty properly, the fraud perpetrated by exporter would not have gone undetected and that by his inaction, Shri S.K. Vishwakarma allowed the goods to be loaded. 15. On the basis of findings the Original Authority has passed the order which is reproduced below:- (i) I order rejection of FOB value of ₹ 2,45,11,179/- declared by the exporter in the Shipping Bills No. 702,703 704 all dated 07-06-2008 as per the provisions contained in Explanation (iii) of Rule 8 of Customs (Determination of Price of Export Goods) read with clause (iii) of the second proviso to Section 14 of the Customs Act, 1962. (ii) I order re-determination of FOB value of exported goods covered by Shipping Bills No. 702,703 704 all dated 07-06-2008 in accordance with the provisions contained in Rule 4 to 6 of Customs (Valuation of Export Goods) Rules, 2007 as ₹ 34,43,972/- (Rupees Thirty Forty Lacs Forty Three Thousand Nine Hundred Seventy Two only) by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y). (ix) I order that the drawback amount of ₹ 12,00,79,410/- (Rupees Twelve Crores Seventy Nine Thousand Forty Hundred ten only) paid in excess than actually due, to be recovered under the provisions of Section 75 of Customs act, 1962 read with Customs, Central Excise Duties Service Tax Drawback Rules, 1995. The interest on the excess availed drawback is also liable to be recovered in terms of Section 75A(2) of the Customs Act, 1962. (x) I order confiscation of the carpets valued at ₹ 1,59,66,35,071/- involving drawback amount of ₹ 16,93,96,338/- exported during the period from 2004-05 to 2008-09 from various ports viz. JNPT, Nhava Sheva, Mumbai; ICD, Bhadohi Air cargo Complex, IGI Airport, New Delhi as they did not correspond in material particulars viz. quantity, quality and value furnished by the exporter i.e. M/s Kaka Carpets on the shipping bills. However, as the goods are not physically available, I refrain from imposing any redemption file in lieu of confiscation. (xi) I impose a penalty of ₹ 5,00,00,000/- (Rupees Five Crores only) on M/s Kaka Carpets under section 114(iii) of the Customs act, 1962 for contravention of aforesaid pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h in Dubai were never enquired into. On the basis of enquires made at the place of manufacture, the prices at the place of sale cannot be ascertained. So far as the past clearances from 02-02-2004 to 24-06-2008 are covered the value of the goods exported was assessed, the goods were exported, drawback claimed was found to be admissible, the export proceeds were received and therefore, there is no reason to reopen the assessment of goods exported during the past period. In respect of the goods under seizure, he has submitted that Page 75 of the Show Cause Notice takes cognizance of the same wherein it is stated that out of the declared value of ₹ 2.45 crore since after resealing and export of consignment with 63 rolls less than the declared rolls, the export proceeds received by the exporter were around ₹ 2.15 crore which establishes that the valuation alleged in the Show Cause Notice is totally unfounded. ₹ 30 lakhs less received compared to the declared FOB value was on account of non-export of 63 rolls of carpet. He has further prays for disbursement of drawback involved in said three Shipping Bills bearing No. 702, 703 704. He has further relied on this Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, and the same cannot be construed as evidence sufficient to confirm the charge of less quantity or allegation of negligence on the part of Shri Pawan Kumar Singh. (b) In the instant case, the examination was carried out by the examining Officer who found the goods to be in order had endorsed the report to that effect on the reverse of the Shipping Bills and on the basis of that expect Shri Pawan Singh has countersigned and granted Let Export. Therefore, it is erroneous to hold that Shri Pawan Kumar Singh was negligent in his duties. (c) The Investigating Officer had examined a number of persons concerned with clearance of the consignment and none of them have given any statement in respect of Shri Pawan Kumar Singh indicating that Shri Pawan Kumar Singh was remotely aware of any misdeclaration or he had connived with the exporters and that there were no allegations about the pecuniary gain by Shri Pawan Kumar Singh in the whole case. (d) There is no provisions in Section 114 of the Customs Act, 1962 for imposition of penalty for dereliction of duty and failure to perform duty efficiently and relied upon various Final Orders issued by this Tribunal such as in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port through said Shipping Bills bearing No. 702, 703 704. (ii) Shortage of goods found in the container on 25-06-2008 at Gate Way Port. (iii) Valuation of goods already exported and recovery of disbursed drawback in respect of them (iv) Personal penalty imposed on Departmental Officers. 22. We find from various submissions as stated above that the container was not inspected immediately after it was removed from ICD, Bhadohi. The counting of the contents of container was carried out much later after eighteen days of container being out of the control of Officers. For counting contents of the goods at the Gate Way Port several times it was reopened, resealed, shifted from one container to another. Therefore, it cannoills. The fact also has emerged that wt be established beyond doubt that the goods stuffed in containers at the time of sealing of container at ICD, Bhadohi were less than that declared in the said Shipping Bhen the goods were actually exported after provisional release Overseas importer received 63 rolls less than that declared in the said three Shipping Bills but the valuation of the goods exported through said three Shipping Bills was not red ..... X X X X Extracts X X X X X X X X Extracts X X X X
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