York Exports Vs. Cc

York Exports vs Cc

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Jan 07, 1999

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Citation: sooperkanoon.com/14963
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: J T J.H., J S Murthy
Decided On: Jan 07, 1999
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

York Exports

Respondent

Legal References

Reported In: (1999)(85)LC270Tri(Mum.)bai

Excerpt

.....the show cause notice cites contravention of other provisions also. para 13 speaks of section 113(1)a of fera, 1973.it is correct that in para 32 of the order the learned commissioner has dropped the charges as regards contravention of the provisions. we find that in the show cause notice no action was proposed for the contravention of this. the citation required the exporter to give a declaration in all material particulars of all export consignment. the extract is not sufficient to show whether the failure to comply with, would make the goods prohibited goods. but the fact that this has been mentioned in the show cause notice would make it appear that this was the charge.4. although we find substance in the claim of the learned advocate that the goods were not shown to be prohibited goods under strength of the export control order, 1988, we find that the various provisions cited in the show-cause notice would have a bearing on the orders of penalty under section 114. in fact the way the section is worded the applicability to the facts of the case might be subject of lengthy argument at the time of the hearing of the main appeal. for the time being, we contend ourselves in observing that in the two shipping bills in question admittedly materials other than those which were required, were used. we therefore, direct the applicant to deposit a sum of rs. 25,000/- towards the penalty imposed, within 10 weeks of the order being received by them. on such a deposit being made, the condition of deposit of the reminder (sic) shall stand waived and recovery thereof shall be stayed. the case is to come up for reporting compliance on 10.12.1998.

Full Judgment

1. The applicants in this case, exported 18 consignments of Mohair Polyester Blended Knitwear, giving the composition of 70% Mohair and 30% Polyester against Advance Licence earlier obtained. The test reports showed that in two consignments covered under two shipping bills dated 2.9.1994 and 5.9.1994, there was vast variation in the composition. The acrylic fibre was used in the place of polyester. In the impugned order the Commissioner held that these goods were liable for confiscation. He ordered the confiscation and permitted the redemption on payment of Rs. 5.5 lakhs in addition to imposing a penalty of Rs. 75,000/-. The confiscation was adjudged in terms of 113(d) of Customs Act, 1962. Penalty was imposed under the provisions of 114(1) of the Act. Shri Mathew, learned advocate submits that under these provisions only those goods can be confiscated which are exported contrary to any prohibition imposed under the Customs Act or any other act. He refers to the show cause notice in which he shows that the goods were alleged to be prohibited in terms of para 3 of the Export Control Order, 1988. It is his submission that this provision stood superseded vide Foreign Trade (Application of Rule in certain cases) order of 1993 issued vide Ministry of Commerce notification issue no.

1056(2) dated 31.12.1993. It is his claim that since the goods were not prohibited, they could not be confiscated nor penalty could be imposed.

Shri Suman arguing for the department claimed that the very DEEC scheme equates the material imported with the material used in the export product and where the imported material is not used in the export product, penal action is warranted.

2. We have carefully considered the rival submissions. Section 113(d) deals with liability to confiscation of goods exported contrary to any prohibition imposed under the Customs Act or any other law for the time being. The show cause notice referred to the export control order which deems certain goods as prohibited goods in respect of which there are material differences between the description in the declaration and that physically found. It is true that this ceased to be in force with effect from 1993. We however, find that the show cause notice speaks about certain other obligations cast upon the exporter in the situation. Show cause notice is composite one which seeks confiscation of imported raw material and exported final products. The Commissioner in the order however, has exercised restraint and taken a lenient view as for the import aspect is concerned. Penalties were imposed under Sections 114 and 112 in terms of show cause notice.

3. As we have observed, the show cause notice cites contravention of other provisions also. Para 13 speaks of Section 113(1)A of FERA, 1973.

It is correct that in para 32 of the order the learned Commissioner has dropped the charges as regards contravention of the provisions. We find that in the show cause notice no action was proposed for the contravention of this. The citation required the exporter to give a declaration in all material particulars of all export consignment. The extract is not sufficient to show whether the failure to comply with, would make the goods prohibited goods. But the fact that this has been mentioned in the show cause notice would make it appear that this was the charge.

4. Although we find substance in the claim of the learned advocate that the goods were not shown to be prohibited goods under strength of the Export Control Order, 1988, we find that the various provisions cited in the Show-cause Notice would have a bearing on the orders of penalty under Section 114. In fact the way the section is worded the applicability to the facts of the case might be subject of lengthy argument at the time of the hearing of the main appeal. For the time being, we contend ourselves in observing that in the two shipping bills in question admittedly materials other than those which were required, were used. We therefore, direct the applicant to deposit a sum of Rs. 25,000/- towards the penalty imposed, within 10 weeks of the order being received by them. On such a deposit being made, the condition of deposit of the reminder (sic) shall stand waived and recovery thereof shall be stayed. The case is to come up for reporting compliance on 10.12.1998.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties York Exports vs Cc Same Subject Land Acquisition Same Judge J T J.H., J S Murthy