Ashok Jindal:
Appeal No. C/807/2003 has been filed by M/s. Bajaj Auto Limited (BAL) and appeal No. C/887/2003 has been filed by Revenue. M/s. BAL filed the appeal for denial of DEPB claim in the impugned order which were claimed by BAL at the time of export of the goods through various Bills of Entries filed during the period from July 2001 to January 2002. Revenue has filed appeal against dropping of penalty on M/s. BAL in the impugned order.
2. Shri A. Hidayatullah, learned Sr. Advocate, appeared on behalf of M/s. BAL and submitted that the facility of DEPB benefits has been withdrawn and, therefore, even if M/s. BAL succeeds in the appeal, they will not be able to get the consequential benefits. Therefore, he prays that they may be permitted to withdraw their appeal.
3. On behalf of the Revenue, Ms. D.M. Durando, learned Dy. Commissioner (AR) appeared and submitted that it is a case where M/s. BAL has filed shipping bills claiming DEPB benefits which was not available to them and the said act of the appellant made the goods liable for confiscation. Therefore, penalty under Section 114 of the Customs Act, 1962 is leviable. She further submitted that, as the goods were not available, therefore, the adjudicating authority has rightly not imposed redemption fine but the first appellate authority dropped the penalty on the ground that the act of M/s. BAL is not culpable act, which is not correct. Therefore, the impugned order dropping the penalty to be modified by confirming the penalty on M/s. BAL.
4. In response to the arguments advanced by Ms. Durando, Shri A. Hidayatullah, learned Sr. Advocate, submits that before filing the shipping bills M/s. BAL, by a letter dated April 22, 2000 has explained the way of export of Legend scooters to Iran and on the basis of that letter shipping bills were filed and DEPB benefit was claimed. He further submitted that prior to the impugned shipping bills, M/s. BAL were exporting the impugned goods by claiming DEPB benefits, which were not denied. Therefore, there is no mala fide intention on the part of M/s. BAL in claiming DEPB benefits. When there is no mala fide intention penalty cannot be imposed. Moreover, it is a claim by the assessee and if the claim is not justified, then benefit can be denied and redemption fine and penalty are not imposable. To support this contention he place reliance on Urvesh Psyllium Industries Ltd. vs. Commissioner of Customs (Imports), Mumbai 2005 (180) ELT 488 (Tri.-Mumbai) and Northern Plastic Ltd. vs. Collector of Customs and Central Excise 1998 (101) ELT 549 (SC).
5. On careful consideration of the submissions made by both the sides we find that vide letter dated 22/04/2000, M/s. BAL has intimated to the department, the way of exporting Legend scooter to Iran and in consequence to that letter they filed shipping bills by claiming DEPB benefits. In the four earlier shipping bills, the claim of DEPB benefits were admitted by the department. Moreover, if it is found that M/s. BAL is not entitled for DEPB benefits, then same can be denied but there is no question of imposing redemption fine or penalty as the goods have not been made liable to confiscation. This Tribunal, in the case of Urvesh Psyllium Industries Ltd. (supra) has held that it is well settled law that claiming benefit of a notification does not amount to any mala fide on the part of the importer so as to invite penal action. In the case of Northern Plastic Ltd. (supra) honble apex Court has observed as under:
“The declaration made by the appellant has been found to be wrong by the Collector and CEGAT on the ground that there was a separate exemption notification in respect of jumbo rolls for Cinematographic Films. While dealing with such a claim in respect of payment of customs duty we have already observed that the declaration was in the nature of a claim made on the basis of the belief entertained by the appellant and therefore, cannot be said to be a mis-declaration as contemplated by Section 111(m) of the Customs Act. As the appellant had given full and correct particulars as regards the nature and size of the goods, it is difficult to believe that it had referred to the wrong exemption notification with any dishonest intention of evading proper payment of countervailing duty.”
6. In view of these observations, we hold that M/s. BAL has clearly declared their mode of export of Legand scooters and have claimed DEPB benefits. In that view, it is the right of M/s. BAL to claim the DEPB benefit, if available, and if that is not available, the concerned authorities can deny the same but that does not amount to mis-declaration or invite any penal action, redemption fine or penalty. Therefore, we do not find any infirmity in the impugned order and the same is upheld.
7. The appeal filed by the Revenue is dismissed. Further, as prayed by the learned counsel for M/s. BAL, that they want to withdraw their appeal, therefore, the appeal filed by M/s. BAL is dismissed as withdrawn.