9911796707
TMI Blog2022 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... . Brief facts of the case are Revenue initiated enquiry against various exporters including this appellant who is IEC holder and located at New Delhi. It appeared to Revenue that this appellant have illegally diverted their export consignments cleared through ICD, Tughlakabad to destination other than the destination declared in the shipping bill, in order to avail undue benefit of 'Focus Market Scheme' (FMS), Special Focus Market Scheme (SFMS), Market Linked Focus Production Scheme (MLFPS) and Merchandise Export from India Scheme (MEIS). Investigation revealed that appellant and others used to file the shipping bill at ICD, Tughlakabad by showing a country as 'Country of Destination', which was notified under Chapter 3 of Foreign Trade Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estination was declared to the customs in the respective shipping bill. Further M/s FCI submitted the original TR-1 / TR-2 copies of customs cleared shipping bills dated 20.02.2015 and 19.02.2017. It was observed that in all the shipping bills filed by appellant, there were manual amendments in handwriting of some unknown person on first page of shipping bill with regard to port of dispatch & country of destination. Originally Manzanillo or Mogadishu as the case may be, was printed on the shipping bills as port of despatch and Mexico or Somalia as the case may be was declared as country of destination, which were found to be stricken out manually and further Jebel Ali was found written by hand against port of dispatch, and Dubai was written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs. The aggregate amount of the other three scrip was Rs. 22,37,970/-. As against the other three shipping bills where goods were shipped through M/s IAL Logistics, no license / scrip had been issued by DGFT. 8. Statement of Proprietor of the appellant Sh. M. P. Singh was recorded who admitted that on the request of the buyer of the goods, he had directed the freight forwarding agent to change the destination. 9. Show cause notice dated 09.10.2017 was issued proposing to confiscate the goods exported vide twenty shipping bills as per Annexure-A to the show cause notice having FOB value Rs.9,41,94,578/- under Section 113(d), (g) and (i) of the Act. Further, proposed to demand the ineligible amount of Focus Market licenses obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red goods) read with the Drawback Rules. It was further urged that the physical export of goods is not disputed by Revenue. Admittedly, the export proceeds have also been received in convertible foreign exchange with respect to the twenty shipping bills in question. The shipping bills alongwith other related documents were filed as per law. The LET export order was given after all the requisite processing and examination of the goods by the officers. The appellant got the port of export and country of destination changed at the last minute through the freight forwarder agent, as per instruction received from the buyer. Further, there is no bar for export of readymade garments to UAE for availment of duty drawback. The drawback can be reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shipping bill after Let Export Order was given. Further, the permission for export was for country like Mexico, Somalia or Ethiopia, as the case may be. The very basis of claiming duty drawback in these cases, were the shipping bills duly cleared by the Customs, which had different place declared as regards country of destination. It was further observed that the admissibility of drawback is not dependent on the country of destination. Further, observed that the benefit of duty drawback cannot be taken away for infringement of condition application to availment of FMS. The two schemes are independent and admissibility or inadmissibility of benefit under one scheme (FMS) has no bearing on the admissibility of the other scheme (duty drawbac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that export proceeds have not been received. Thus, the drawback cannot be disallowed. Under the facts and circumstances, it was held that the appellant shall not be entitled to benefit of FMS. However, the Commissioner (Appeals) was pleased to uphold the penalty on Sh. Imran Mirza. So far the penalty on this appellant is concerned, taking notice amount of FMS was repaid with interest and penalty, penalty was reduced under both the Sections to Rs. 22 lakhs each. 13. Learned Counsel for the appellant inter-alia urges that the issue before the Tribunal is whether the goods which have actually been exported can be confiscated under Section 113 and further penalty have been rightly imposed under Section 114(iii) and 114AA, although the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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