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TMI Blog2017 (8) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... stated shipping bills were not entered in "export goods arrival register" maintained at CFS, STT, ICD, Dadri. It was also alleged that the entire consignment was divided in 11 Shipping bills in order to keep the drawback amount in respect of each shipping bill within the limit of Rs. 1 lakh so that the said shipping bill does not pass through the screen of Assistant Commissioner of Customs. Statement of various persons associated were recorded such as Shri. Ajay Agarwal, proprietor of the appellant firm, Shri R.C. Chakravarty, Accountant of the appellant firm, Shri Kuldeep Buxi, Shri Mathew Kunnath partner of M/s Overseas Air Cargo Services, Customs House Agent, Shri Sunil Pandey, Shri Vivekananda Pandey, Shri Harish Sharma, Shri Mukul Mehta, proprietor of M/s Kanak Cargo and few other persons. On the basis of said statements it was alleged in the said show cause notice that the appellant in collusion with Customs Agent M/s Overseas Cargo Services, Shri Harish Sharma, forwarder, Shri Luv Kumar an employee of the Customs Agent, Shri Rajeev Chhibber, Shri Arvind Singh an employee of M/s H.A.H. Logistics Private Limited improperly exported Ready Made Garments at highly inflated price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded that perusal of the records of the case show that there has been export of the goods concerned. In Para 41.10 of the said Order-in-Original the Original Authority has given following chart regarding the details of the Realization of Foreign Exchange though the Bank in respect of 11 shipping bills, in respect of which said show cause notice dated 22.06.2011 was issued. Ref. No. Date S/Bill No. GR amount (USD) In Rs. Realised on 51540110 03/11/10 1279758 18997 886400.02 03.11.10 1279748 19090 890739.40 03.11.10 1279763 20120 938799.20 03.11.10 1279713 19488 907583.63 03.11.10 1279760 19586.75 905637.26 03.11.10 1279700 19350 893002.50 03.11.10 1279762 19687.50 908578.12 03.11.10 1279750 20160 930384.00 03.11.10 1279761 20280 935774.06 03.11.10 1279759 20040 924645.60 03.11.10 1279751 12470 577373.19 03.11.10 209269.25 9698916.98 In Para 41.11 of the said Order-in-Original the Original Authority has recorded that on sifting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in view of the fact that the goods have been exported and the export processed had been realized, the Commissioner (Appeals) may set aside the impugned Order-in-Original. The learned Commissioner (Appeals) had decided the appeal through impugned Order-in-Appeal dated 23.03.2012. The learned Commissioner (Appeals) in Para 4.4 of her Order-in-Appeal has stated as follows:- "There is no doubt that the impugned goods have been exported and the appellant might have received the export proceeds. But, these facts cannot mitigate the fraudulent nature of exports." And in view of his such findings she upheld the said Order-in-Original dated 24.12.2011 and rejected the appeal. Aggriecved by the said order the appellant is before this Tribunal." 4. The grounds of appeal are as follows:- i. The Learned Both the authorities below have failed to appreciate that in the present case there is no allegation much less evidence that the goods in question have not been exported. Rather it is a fact on record and has been admitted in the opening line of Para 41.1 of the original order that the goods have been exported. Relevant portion of Para 41.1 reads as under: "41.1 A perusal of the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer of Customs having satisfied himself that the goods can be allowed to be exported thereafter gives Let Export Order (LEO) and the goods are then handed over by the custodian to the concerned Shipping Line. After LEO, the print out of finally assessed S/B is taken in triplicate and duplicate i.e. exporter's copy and triplicate i.e. export promotion copy are handed over to the exporter or his CHA. It is apposite to mention that as per Appraising Manual of Customs the Public Notices issued by the Customs at major ports are applicable to all minor ports, if no such Public Notice has been issued in that minor port. vi. It may kindly be appreciated that the EDI system is managed and maintained by the National Informatics Centre (NIC), Government of India. According to the instruction issued by the Officer-in-Charge of the port, normally the EDI system is booted (started) in the morning at the start of office hours i.e. 09.30 hrs. and shut down at the close of office hours i.e. 18.00 hrs. after saving the data generated during the day. At times the system is allowed to be shut down by the Customs Officer-in-Charge of the Inland Container Depot beyond normal office hours if ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nland Container Depot, Dadri (not in dispute) and were available for examination till LEO was given and even till actual shipment thereof. In any case, as per EDI generated remarks on S/Bs that This consignment was not opened for physical examination by Customs, it is clear that there was no order for physical examination of the consignments in question. It is reiterated that order for examination or inspection is auto generated in EDI system on random basis. 5. Heard the learned counsel for the appellant. Learned counsel has submitted that all the due procedure was followed for processing of the documents and Let Export Order was given by the Authorities of Customs Department, goods were exported and export proceeds were realized as recorded in the Order-in-Original. Therefore, there is no case for initiation of any action in the present case and show cause notice is not maintainable. 6. Learned AR has supported the impugned Order-in-Appeal. 7. During the hearing this Bench requested the representative of Revenue to clarify whether any cross objection has been filed by Revenue against the above stated grounds of appeal to which the representative of Revenue has replied that Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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