Cc Vs. Deluxe Exports and ors. - Court Judgment

Excerpt:

.....imported hdpe duly permitted by the licences, he did not find any violation of policy provision or violation of conditions of notification 204/92 customs and accordingly dropped the proceedings.6. we have carefully considered the submissions made by learned dr and learned advocate appearing on behalf of some of the respondents. it is an admitted fact that the dgft authorities have by mistake issued the licences which enabled import of either ldpe or hdpe instead of permitting import of only ldpe. no evidence has been adduced to show that the exporters were guilty of any mis-declaration leading to issue of the said licences by the dgft authorities. even after the lapse of several years, the licence issued by dgft authorities have not been cancelled even though such requests had been made to them by the investigating agency. in the light of this, we hold that no valid grounds have been brought out to interfere with findings of the commissioner. therefore, all these appeals are rejected.

Judgment:

1. All these 12 appeals by the Department are against Order-in-original No. KDL/Commr/5699, dt.21.12.99 by which the Commissioner of Customs dropped the proceedings initiated against the respondent vide Show Cause Notice No. S/10/59/98/SIB, dt. 12.11.98.

2. Heard learned DR for the Department and learned Advocate for the respondents Deluxe Export, Karan Exports, Shri M.D. Shah, Rajesh Enterprises and Shri Rajesh Sanghvi. Nobody represented the other respondents.

i) M/s Naik Seafoods is holder of advance licence No. 15 26 209 dt.30.12.93 and M/s Naik Ice and Cold Storage is advance licence holder of No. 15 26 210 dt.30.12.93. Shri Nissar Sheikh Hasan Naik is the Director of M/s Naik Sea Foods Ltd. and partner of M/s Naik Ice & Cold Storage. They have exported sea foods and used packing materials made out of LDPE granules. DEEC licence issued to them inter alia permitted import of certain quantities of "LLDPE/LDPE/HDPE/PP" granules.

ii) These licences were sold by them to one M/s Rajesh Enterprises, a proprietary concern with Shri Rajesh Sanghvi as the proprietor.

Licences were registered with Mumbai Customs and TRAs issued for import of goods through Kandla customs.

iii) M/s Deluxe Exports and M/s Karan Exports which are propriotory concerns of Shri M. Shah, imported HDPE granuals and warehoused them with CWC Kandla. M/s Unique Plastic is a purchaser of High sea sale basis, and Shri Haresh Chandra is its Director, M/s Kandla Clearing Agency, is CHA who handled the import, Shri Shantilal Jain is its director.

3. On the basis of investigations conducted by DRI, the Show cause notice was issued inter-alia demanding duty of Rs. 38,78,157/- from the importers and proposing penalty on the importers as well as other respondents.

4. The main allegation is that DEEC licence holders did not use HDPE, only used LDPE granules in their export product and therefore, import of HDPE by transferee are not legal.

5. The Commissioner has held that there was no mis-declaration on the part of exporters who were granted the DEEC licences. The licence issued by DGFT authorities permitted import of "LLDPE/LDPE/HDPE/PP" granules that it was admittedly a mistake on the part of DGFT authorities to have mentioned HDPE in the licence issued by them. As the licenses were transferable and the transferees have imported HDPE duly permitted by the licences, he did not find any violation of policy provision or violation of conditions of notification 204/92 Customs and accordingly dropped the proceedings.

6. We have carefully considered the submissions made by learned DR and learned advocate appearing on behalf of some of the respondents. It is an admitted fact that the DGFT authorities have by mistake issued the licences which enabled import of either LDPE or HDPE instead of permitting import of only LDPE. No evidence has been adduced to show that the exporters were guilty of any mis-declaration leading to issue of the said licences by the DGFT authorities. Even after the lapse of several years, the licence issued by DGFT authorities have not been cancelled even though such requests had been made to them by the investigating agency. In the light of this, we hold that no valid grounds have been brought out to interfere with findings of the Commissioner. Therefore, all these appeals are rejected.