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Radhey International Versus Commissioner of Customs & Central Excise, Noida

2017 (8) TMI 428 - CESTAT ALLAHABAD

Confiscation of goods - shipping bills were not entered in export goods arrival register maintained at CFS, STT, ICD, Dadri - drawback claim - Held that: - it is very clearly held by the Original Authority that the clearance for export of goods was given by the Customs Authorities that goods were exported and the export proceeds were realized. The Original Authority in the Order-in-Original has made some observations on few issues about the procedure followed. The appellant in the above stated g .....

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r the claim of drawback is filed and assessed accordingly - the appellant had followed the proper procedure and Let Export Order was given by Customs Authorities and goods were exported and export proceeds were realized. - SCN not sustainable - appeal allowed - decided in favor of appellant. - C/2324/2012-CU [DB] - C/A/70723/2017-CU[DB] - Dated:- 10-7-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri K.K. Anand (Advocate) for Appellant Shri Raje .....

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value of the goods involved in the said 11 Shipping bills was ₹ 98,24,691/-. It appeared to Revenue that the appellant did not follow proper procedure for export of goods. Therefore, the appellant were issued with a show cause notice dated 22.06.2011 wherein it was alleged that the above 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 .....

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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 infla .....

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ustoms Act, 1962, since the goods were not available for confiscation, why Redemption Fine should not be imposed on the appellant, why drawback amount of ₹ 10,30,624/- should not be rejected under Section 75(1) of the Customs Act, 1962 for violation of Section 51 of Customs Act, 1962 as the goods were not permitted for export by the proper officer, why penalty should not be imposed on appellant under Section 114 AA Customs Act, 1962 for violation of provisions of Section 113 (g), [h(i)] of .....

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The appellant contended before the Original Authority that they have already submitted the copies of Bank realization certificate which proves that the goods were exported and that since consignment in question were comprised of 3 types of garments having different sizes, style and variety, therefore, accordingly different shipping bills were filed and that from the registration till Let Export Order the documents in the EDI System were handled by officers who had access to the system only thro .....

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oods 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 .....

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he goods were got cleared from Customs by hook or crook or in such a way that they were made to reach its destination. He has held that the goods were deemed to have been registered from 22:15:09 hours to 22:28:02 hours on 23.06.2010 and deemed to have been examined from 22:47:07 hours to 22:56:43 hours on 23.06.2010. The entry of the aforesaid shipping bills were neither made in the export goods arrival register maintained at CFS, Star Track Terminal and also held that the goods did not pass th .....

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he claim of drawback of ₹ 10,30,624/- (Rs. Ten Lakh Thirty Thousand Six Hundred Twenty Four only) under Section 75 (1) of the Customs Act, 1962. iv. I impose penalty of ₹ 98,24,691/- (Rs. Ninety Eight Lakh Twenty Four Thousand Six Hundred Ninety One only) on M/s Radhey International, A-49, New Multan Nagar, New Delhi under Section 114 AA of the Customs Act, 1962 for violation of Sections 50, 51 and 113 of the Customs Act, 1962. v. I refrain from imposing penalty under Section 114 of .....

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ave been exported there was no place for entertaining any suspicion. It was further contended that the value of the goods exported by the appellant has been realized and was admitted by the Original Authority as stated above. Appellant has further contended that 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 .....

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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 records of the case shows that there has been an ex .....

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ly based on doubt and suspicion, cannot be countenanced. iii. It is also a fact that the value of goods exported by the Appellant has been realized and BRC's were duly submitted to the investigating officers by the Appellant. iv. The learned Both the authorities below have failed to appreciate that in the instant case the Shipping Bills with all due declaration were duly filed electronically, the goods in question are not prohibited and were not chargeable to export duty, the goods were duly .....

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bad, New Delhi. According to which on the basis of documents viz. invoice and packing lists, the details of export goods are declared in the prescribed format by the exporter/CHA, which is submitted to Service Centre (CMC), an agency authorized by the Customs to feed data in EDI system. Then a checklist is generated along with S/B number on the screen of EDI system without any human intervention. Thereafter S/B is processed by the Customs Officer on EDI system and thereafter the goods are allowe .....

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nded 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 appr .....

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ainer Depot beyond normal office hours if there is a rush of import or export works at the port. vii. All the Customs Officers attending registration, processing, examination, LEO etc. relating to export of goods are allotted a unique password to access the EDI system. The CBEC has issued Circular F. No.401/77/2009-CUS-III dated 15/05/2009 according to which the Customs Officers working at ICDs/Ports have been instructed not to divulge or share the password allotted to him with any other person. .....

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se of office hours or such extended time as may be allowed by the Customs Officer-in-Charge of the Inland Container Depot. ix. In the instant case: a. Time of filing of checklist and printing thereof is 18.13 hrs. to 18.18 hrs. on 23/06/2010. b. Time of registration is 22.15.09 hrs. to 22.28.02 hrs. on 23/06/2010; c. Time of examination is 22.47.07 hrs. to 22.56.43 hrs. on 23/06/2010; and d. LEO was given from 10.47.36 hrs. to 12.00.49 hrs. on 24/06/2010. Impliedly, the EDI system at Inland Cont .....

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bility of any fraudulent entry in the EDI system by unauthorized person nor has the learned Both the authorities below given any such finding and rightly so, as the different stages of work of registration; processing, examination, LEO etc. are attended by different officers having different password to access EDI system. x. The facts narrated above clearly evince that the consignments in question did arrive at the port of Inland Container Depot, Dadri (not in dispute) and were available for exa .....

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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 .....

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