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TMI Blog2022 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... lls. The Goods to be exported under these documents were declared as 'Leather Apparels, Leather Gents Long Jacket and Leather Gents Jacket' and were mentioned to be under drawback scheme. The goods were to be exported to M/s. Unimax Handbags, Los Angeles. 2.1 Officers of Directorate of Revenue Intelligence, Delhi Zonal Unit, on the basis of intelligence that some firms are indulging in fraudulent availment of drawback by way of overvaluation and mis-declaration, checked the live shipments produced for export by some of the exporters at ICD, Tughlakabad. During the said exercise that the aforesaid two shipments of appellant were detained and examined. The goods of those shipments were found packed in carton box and then wrapped with HDPE bag. The quantities of goods were found to tally with that mentioned in respective invoices and packing lists. However, from the visual examination, the leather jackets were clearly visible to be old and used and as such found to not to match with the declared description of the goods. Accordingly, goods of both the shipments were detained under the provisions of Customs Act, 1962 vide Panchnama dated 17.02.2017. During the investigation, there app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the appellant was recorded on 29.03.2017 but the letter was sent to the department on 31.01.2017 immediately when the CHA of the appellant had brought to the notice of the appellant that the goods in the consignment instead of being the fresh leather jackets are old and used jackets. The letter dated 31.01.2017 cannot at all be the afterthought. The demand is prayed to be set aside on this ground only. 4.1 It is submitted that since the difference in quality of goods was brought to the notice of the department immediately after the difference brought to the notice of the appellant that no reason appears with the department to confiscate the said goods. In the given circumstances, especially the letter dated 31.01.2017 is sufficient to show that there was no malafide intent on the part of the appellant to export the goods by deliberately mis-declaring the description and by deliberately overstating the value thereof to the customs to avail the undue drawback. The imposition of penalties under Section 114 (iii) as well as under Section 114 AA on the appellant as well as on its Director are not at all sustainable. It is also submitted that penalty under Section 114AA cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the following findings: i. The value was liable to be rejected as the export goods were found of inferior quality as per examination conducted by the officials. ii. Seizure of the goods was on a reasonable belief. iii. Value has been correctly re-determined under Rule 6 of the CVR 2007 as rule 4 & 5 could not be applied as goods of like kind and quality were not available in the market. iv. The Appellants was liable to be penalized in terms of the Section 114 (ii) & 114 AA of the Customs Act, 1962. v. Letter dated 31.01.2017 is clearly an afterthought as a letter was nowhere indicating about the inferior quality of the goods. 7. The appellant mainly contended the said findings on the ground that there is no possibility for the said letter to be an afterthought and secondly on the ground that there was no intent with the appellant to mis-declare and to intentionally overvalue the consignments for claiming wrong duty drawback. But I observe that admittedly, appellant had filed the declaration required for exports of readymade garments for availing higher all industries rate of drawback, hence the goods to be exported for claiming said drawback has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter. Perusal thereof shows that the only reason for withdrawal of the cargo (shipment in question) mentioned in that letter is that the appellant's buyer has cancelled the shipment due to delay in delivery. It is apparent on record that the impugned shipment was detained on 17.02.2017, the Commissioner (Appeals) has held the letter dated 31.01.2017 without any acknowledgment for the inferior quality of goods as nothing but an afterthought. Per contra the emphasis of appellant while challenging these findings is that since the shipment was detained on 17.02.2017, there was no occasion with the appellant to mention the observations of Panchnama dated 17.02.2017 in the letter dated 31.01.2017. 10. To adjudicate the same, I observe that the appellant in his statement has mentioned that the cancellation of order by the importer was the reason for withdrawal of shipment. Same ground is mentioned in letter dated 31.01.2017 vide which the withdrawal of consignment of impugned goods was prayed. Since goods were detained on 17.02.2017, apparently, the letter dated 31.01.2017 does not appear to be an afterthought. But statement of the appellant, if read as a whole, is observed to have suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd imposition of redemption fine is concerned that too on the bases of letter dated 31.01.2017 being an afterthought. To that extent order under challenge is hereby upheld. 12. Coming to the issue of imposition of penalty under Section 114 (iii) and 114 AA of Customs Act, 1962, the same is objected by learned Counsel on the ground that penalty cannot be imposed upon the company and secondly on the ground that the appellant himself was not aware of the goods of impugned consignment to be old and used jackets till it was informed to him by his CHA. He otherwise had already applied for withdrawal of both the shipments under both shipping bills. With respect to the first ground of objection it is held that penalty under Section 114, Customs Act, 1962 is imposable on such person as is mentioned in the respective section. The plea of appellant that Section 114 (iii) and Section 114 AA are not applicable on the companies but the same is not acceptable as legislature has never intended to exclude a juristic person like, company, from word 'persons'. Both these section penalizes person. As per Section 3 (42) of General Clause Act 'person' shall include the company or association or body of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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