TMI Blog2001 (7) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 cartons were found to be containing 8000 pieces of vary old/used/repaired/working O.T.M. of clocks valued at Rs. 80,000/- and 104 cartons were found to contain 92,000 pieces of very old/used/broken/non-working Q.T.M. of clock having no commercial value. The goods were being exported under DEEC Scheme. The duplicate/triplicate copies of the shipping bills covering the goods was not available with the Customs House Agent M/s. India Mercantile Agency and Freight Forwarding Agent M/s. Burlington Air Express (India) Pvt. Ltd. After investigation, show cause notice dated 27-1-1996 was issued to 12 noticees (including Appraiser and Examiner of Customs House) for confiscation of the goods under the provisions of Customs Act read with Foreign Exchange Regulation Act (FERA) and for imposition of penalty. 2.2 The Commissioner of Customs, under the impugned Order, confiscated the impugned goods under Section 113(d) and (i) of the Customs Act read with Sections 18(1) and 67 of the FERA with an option to redeem the same on payment of fine of Rs. 80,000/-. The Commissioner also imposed following penalty :- (i) M/s. Fortune Impex Rs. 4,00,000/- (ii) M/s. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled the endorsement made on the Shipping Bill after the first examination on 29-7-1995 on the same day itself, exonerated them of the charges; that as Shipping Bills in question was not available to the Adjudicating Authority how she could have come to the conclusion that the said officers detected the mistake immediately on the same day and asked for detailed examination; that as such the entire proceedings are void ab initio and non-submissions of officers reply to the Appellants was a clear case of denial of principles of natural justice. 4.The learned Advocate, further, mentioned that indisputably the value of the goods is Rs. 80,000/- and as such the matter falls within the competence of the Assistant Commissioner of Customs for adjudication; that accordingly the notice was without jurisdiction; that the adjudication by the Commissioner would prejudice the interests of the Appellants as in the normal course they would have the remedy of one appeal before the Commissioner (Appeals) and the other before the Tribunal. He also contended that Shri H.S. Chawla, Partner and Director of Appellants No. 1 and 2 respectively, had clearly admitted that there was a mix up and mistake wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not render them liable to confiscation when the goods were not exported and the buyer had not refused to accept the same. He also mentioned that the fact remains that the goods were not shipped and the G.R. Form was not negotiated and accordingly provisions of Section 113(d) of the Customs Act are not invokable (though not specified in the show cause notice); that the question of invoking Section 18(1) of FERA (again not invoked in the notice) would not arise inasmuch as the G.R. Form was not negotiated and there is no shortfall or non-realisation of the foreign exchange. He contended that the Adjudicating Authority was not competent to invoke the provisions of Section 113(d) of the Customs Act and Section 8(1) of the FERA when the same were not specifically referred to and dealt with in the show cause notice and there was no notice to the appellant in this regard; that the show cause notice itself was not sustainable in view of the fact that it was vague and did not specify the provisions of the Customs Act and the FERA. He relied upon the Article written by him and reported in 1996 (87) E.L.T. A16 in the context of the decision in Dimple Overseas Ltd., 1995 (76) E.L.T. 48 (S.C.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued his arguments by submitting that the only authoritative decision in the matter is that of the Tribunal in the case of Dimple Overseas Ltd. which has been specifically approved by the Supreme Court, though with a rider that the question of applicability of Section 14(1) of the Customs Act in regard to the valuation of export goods has been left open; that the Tribunal in Para 16 of the decision has referred to the Minutes of the Collector's Conference held on 21/22-7-1994 and held that the rigours of Section 14 of the Customs Act are not in terms applicable to a case of exports which are not liable to export duty; that accordingly it is not proper or legal for the Tribunal to vary its decision from time to time and disturb the settled law. Finally the learned Advocate submitted that it was alleged in the show cause notice that 16 selected cartons containing working Q.T.Ms along were produced for examination by the Customs Officers; that the cartons were selected by the Customs Officers for detailed examination; that even these 16 cartons were found to contain 8000 pieces very old/used/repaired working Q.T.Ms, of clocks; that had their intention been to hoodwink the Customs, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the documents to the clearing agent on receipt from the exporter does not constitute any offence under Customs Act, 1962. 8.Shri B.N. Chattopadhyay, learned Consultant, appeared for S/Shri Aurobindo Ghosh, T.K. Dey, Vikram Paul and Subhendu Das and submitted that all these four appellants are employees of the clearing agents; that the charge against them is that they were aware that only 16 specific packages of the consignment contained correct materials; that even those 16 cartons were found to contain very old/used/repaired Q.T.M. of clocks and as such there is no base in the allegation; that there is no evidence to show that they knew about the goods being old/used, etc.; that the examination of the contents of the package is the work of the customs officers; that the Appraiser only examined 10 packages instead of 20 and for this no blame can be apportioned on them; that it is not possible for them to keep the packages opened for examination by the officers; that the packets cannot be opened without the permission of the Customs Officers. The learned Consultant, further, submitted that they had no part to play in the matter of examination of the export materials; that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,500/- which is beyond the competence of the Assistant Commissioner. Further, the lowering of value, in any case, is only effective after the final order is passed after adjudication proceedings. The learned Advocate has also emphasised that there was violation of the principles of natural justice, as the impugned Shipping Bill has not been produced to the Appellants. We observe that it is clearly mentioned in the show cause notice that the duplicate/triplicate/DEEC copy of the Shipping Bill covering the impugned consignment was not available with the Customs Clearing Agent and/or Freight Forwarding Agent. The Assistant Commissioner of Customs (Export), Air Cargo Complex, Calcutta had provided photocopy of the Original Shipping Bill and invoice for the impugned consignment. Shri Aurobindo Ghosh had also deposed in his statements that he was not in a position to submit the Shipping Bill as the same was lost and F.I.R. was made to the Police. Further, the contents of the cartons given for export had not been disputed by the Appellants. In view of this, it cannot be claimed that there was any violation of the principles of natural justice or the findings reached by the Commissioner wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urjeet Singh Chhabra v. U.O.I., 1997 (89) E.L.T. 646 (S.C.) held that "in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witness is not violative of principles of natural justice." In that case the petitioner contended that as he had retracted his statement within 6 days from the confession he is entitled to cross-examine. We also do not find infirmity in granting of personal hearing to the learned Advocate by the Adjudicating Authority on a day when the entire city of Calcutta was observing a holiday, as the Central Government offices, admittedly, were not closed. 13.1Now we come to the contention of the learned Advocate that the defective goods were sent by mistake since the defective goods were staked with the goods meant for export in the premises of the supporting manufacturer. The Adjudicating Authority has considered the said plea and rejected the same holding that "The said goods were not sent from the factory premises to the exporting firm at one go but part by part over a period of eight days since 17-7-1995. The mistake cannot be committed consecutivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision. Judicial propriety demands that the decision of the Larger Bench should be followed by all the Division/Single Bench of the Appellate Tribunal. The Supreme Court in the case of Bharat Petroleum Corporation v. Mumbai Shramik Sangh, 2001 (3) SCALE 531 has emphasised that "the decision of a Constitution Bench binds a Bench of two judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness." The Larger Bench of the Tribunal, after considering the decisions in Shilpi Exports, held that over-invoicing of goods for exportation was an offence under the Customs Act, 1962. The Larger Bench also distinguished the decision in Shilpi Exports by observing that the charge of over-valuation was not proved, the goods were not under a claim for drawback and the exporter had realised the full export value and the Supreme Court dismissed the appeal without touching the legal issue as the matter was decided on the basis of the facts of that case. Accordingly, we hold that the impugned goods are liable for confiscation and penalty is imposable on the Appellant Nos. 1 to 3. The penalty is also imposable on Shri Y.K. Gandhi as h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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