Full Judgment
2. The appellants filed a shipping bill for export of tyres and tubes and declared a specific weight against those items. However, on verification, in so far as tyres with tubes were concerned, the weight was short by 742.50 kgs whereas the tubes were short by 1162.50 kgs though number-wise both the items tally with declaration made in the shipping bill. The appellants when asked to explain the same came forward with a plea that the difference in the weight showed a consistent shortage to the extent of 872 gms per bundle which could be due to some malfunctioning of their weighing scale. They submitted that they had otherwise declared the items correctly so far as the number of tyres and tubes [was] concerned. They also requested that they may be permitted to amend the shipping bill in relation to the weight and that such amended Shipping bill may be passed for clearance of the export consignment. They waived the issuance of the show cause notice as also the personal hearing. The matter was therefore, considered by the Dy.
Collector who came to the conclusion that there was a difference in weight as declared in the shipping bill and hence the provisions of Section 113(d)(i) of the Customs Act stand attracted. Provisions of para 3(3) of the Export (Control) Order 1988 were also held to have been attracted resulting in contravention of Section 11 of the Customs Act, 1962. Therefore, the adjudicating authority passed the impugned order. In the appeal before the Collector (Appeals) he came to the conclusion that in any case, provisions of Section 50(2) of the Customs Act were attracted in as much as the appellants had failed to make proper declaration. He also held that Section 113(d) and (i) stood attracted in this case.
2A. Shri S.N. Kantawalla, the ld. advocate, appearing for the appellants, submits that they do not challenge the fact of shortage in weight. In his submission, however, the total weight of the tyres with tubes was 46,491.300 kgs and the shortage noticed being 742.50 kgs, the difference in weight is only 1.6% and in relation to the tubes, the total weight was 31814.100 kgs. and the shortage was of 1162.050 kgs.
and the difference was of 3.6%. In his submission, the duty at the best, said to have been evaded, would come to only Rs. 17,000. In his submission the present consignment was under DEEC scheme on the prior export basis and that the appellants had earlier already exported certain consignments and taking them together, the total quantity of tyres and tubes already exported comes to 156544.400 kgs against that DEEC licence mentioning a quantity of 147770 kgs and if the entire aspect is considered in its totality, the difference in weight as indicated in the particular shipping bill could be of no significance.
He has submitted that all these datas were produced before the Collector (Appeals) who has not taken into consideration the same and that the Collector (Appeals) has confined himself to the finding as to the contravention of provisions of Section 50(2) of the Customs Act. He submits that in overall view, the difference in weight is of no much significance and even otherwise the export being in confirmity with the DEEC scheme on the prior export basis, there would be no contravention and in any case, the provisions of Section 113(d) and (i) will not stand attracted.
3. Shri Krishnamoorthy, the ld. JDR for the Department, pleaded that the appellants are supposed to file a correct declaration in each shipping bill and here undisputedly they have misdeclared the weight resulting into contravention of Section 50(2) of the Customs Act attracting the provisions of Section 113(i) of the Act and as such the order of confiscation and imposition of penalty is justified. He also pleads that Section 113(d) would stand attracted in as much as what they have attempted to export was not in confirmity with DEEC scheme where the item to be exported should tally not only numberwise but also weightwise. He also submits that the plea of examining the weighment in totality raised at the appellate stage was not raised before the authority below and that therefore now such a plea could not be taken as that would involve in examining the earlier exports. He submits that this falls beyond the scope of the Tribunal now to entertain.
4. Considering the submissions made and going through the records, it appears that invoking the provisions of Section 113(d) is not called for in as much as the same relates to attempted export of the goods contrary to any prohibition made under the Act or any other law for the time being in force. Here no prohibition is imposed against the export of the tyres and tubes. In any case, there is an element of misdeclaration in the shipping bill as to the total weight though of a negligible quantity as has been indicated earlier. When the licence is issued on the prior export basis permitting under DEEC scheme, the question that calls for examination is, whether, the appellants have earlier exported the quantity weightwise more than the one specified in the licence. The appellants have come with the positive claim that they have already effected export of tyres and tubes to the extent of 156544.400 kgs against their licence capacity of 147770 kgs. If this aspect is considered in the totality, possibly, the difference in weight may not lead to any contravention of the provisions as has been attributed to them. From the order passed by the ld. Collector (Appeals), it appears that the DEEC book calls for examination. The plea that has been raised by the appellants would stand attracted in the DEEC scheme. However the Appellate Authority does not seem to have examined the issue as per the angle pleaded by the appellants. It is not possible to accept the submission of the ld. JDR that it is entirely a new point because in the order of the Collector (Appeals) there is a mention about the DEEC book examination. The examination as per the angle urged by the appellants is therefore necessary. Because it involves examining some documents to satisfy that prior export has already been effected, the only alternative available is to remand the matter to the Collector (Appeals), before whom all the evidence should be produced by the appellants. The Collector (Appeals), after examining the issue in its totality, may come to the conclusion as to whether in view of those circumstances, it would be necessary to order confiscation and also imposition of penalty. In the result, the appeal is allowed by way of remand. The Collector (Appeals) may attempt to dispose of this matter within six months from the date of receipt of this order.