TMI Blog2018 (12) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... FMS was availed, was procured from Traders/ Suppliers of Local Market in India. Once the issue referred to DGFT for cancellation of DEPB/FMS Scrips and the adjudication order passed by DGFT had imposed fiscal penalty only, without cancelling the said Scrips and hence, credits allowed cannot be denied. Further, Customs had no authority to take any parallel action under different law making the case a double jeopardy - Goods were not available for seizure and no specific evidence could be adduced to justify mis-declaration and hence, penalty is not imposable. Taking into consideration of the fact that the DGFT authorities had already imposed penalty upon the appellant, the penalty imposed on the appellant company is not warranted. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. By the impugned order the commissioner of Customs (Port) appropriated the amount of ₹ 5,85,241/- and interest of ₹ 1,05,630/- paid by the appellant company and also confirmed the duty amount of ₹ 1,13,860/- equivalent to incentive availed by them in the form of two FMS Licenses and ₹ 63,210/- equivalent to incentive availed in the form of 4 DEPB Licenses alongwith interest. A penalty of ₹ 10 lakhs each was imposed on the appellant company and Sri Anand Prakash Gupta, Director of the appellant company under Section 114(iii) of the Customs Act, 1962. Hence, the appellants filed these appeals. 2. The Ld. Counsel for the appellants argued the matter at length and also submitted Synopsis of the case. It is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and therefore the imposition of penalty on the appellant no. 2 is not justified. 3. The Ld. A.R. for the Revenue reiterates the findings of the Adjudicating authority. It is submitted that the appellant no. 2 admitted the offence in so far as wrongful abatement of export incentive and have returned the entire amount of incentive availed on FeSi and therefore the imposition of penalty is justified. 4. Heard both sides and perused the appeal records. 5. I find that the appellant company exported FeSi during the period from 2008-09 to 2012-13 against 18 Consignments and availed export incentive in the form of Duty Entitled Pass Book (DEPB)/ Duty Draw Back (DBK). It has also availed in some cases, incentive under Focus Marketing Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of ₹ 2 lacs each against three Show Cause Notices. The Ld. Counsel strongly relied upon the decision of the Hon ble Delhi High Court in the case of FNS Agro Feed Ltd Vs. Commissioner of Customs (Preventive), Delhi- 2016 (337) ELT 31 (Del.). IN that case, Show Cause Notice were issued by the Customs authorities on the alleged wrong availment of benefits of DEPB and Export incentive issued on same identical facts under which earlier Show Cause Notice was issued by DGFT in petitioner s favour. I observe that mis-declaration of country of origin of export goods which took place almost 2 to 5 years back:- Statements recorded from the suppliers/manufacturers were not conclusive as to whether domestic or imported goods were suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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