ORDER
Jeet Ram Kait
1. This appeal filed by Karnataka Synthetics Processors (Export), Pvt Ltd, the appellants herein are directed against the order in Original No. 161/2001/CAC/CC/SPS dated 19.4.2001 (issued on 23.04.2001), by which the Commissioner has ordered confiscation of goods viz. 44 cartons of Dyed fabrics manufactured out of spun yarn from man-made fibber, with option to redeem the same on payment of fine of Rs 50,000/-. He has also imposed a penalty of Rs 25,000/- on the appellants.
2. Brief facts of the case are that the appellants herein are merchant exporters. Shipping Bill 1000014968 dated 28.3.200 for export of the goods were filed under exporter’s signature by one M/s Bharat Overseas Communicators, CHA No. 11/658. The goods were consigned to M/s Oceana International Trading, PO Box No. 411, Dubai, UAE. On examination of the goods by the Docks staff at STP, it was found that the fabrics were stamped as ‘Made in Shanghai-China” whereas in the shipping bill it was mentioned as “Made in India”. Statement was obtained from Shri Ramesh Agarwal, Director of the appellants, under Section 108 of the Customs Act, 1962 wherein he interlaia admitted that the export goods covered by the said shipping bill were stamped as ‘Made in Shanghai-China” as against what was declared in the shipping bill as “Made in India”. The exporter admitted the lapse and has prayed for leniency. On the request of the exporter, right of issue of cause notice was waived and the appellants were granted personal hearing on 19.4.2001 and after due process of law, the impugned order was passed as rioted above.
3. Shri.J M Patel, learned Counsel for the appellants submitted that the shipping bill had clearly mentioned the country of manufacture as “Made in India – Not used after manufacture” and the appellants had explained that the stamping on the goods as “Made in China” was done as per the specific requirement of the buyer and he has also cited a letter to that effect from the buyer. He has submitted that by doing, it cannot be said that the appellants have committed contravention of the provisions of the Customs Act. He submitted that vide their letter dated 18.04.2001, the appellants had expressed their willingness to affix the stampings in consonance with what was declared in the shipping bill. He has further submitted that inasmuch as there was no misdeclaration with reference to the country of origin of the goods in the shipping bill and inasmuch as the goods were also cleared by the Central Excise Department under AR-4 form, he prayed for setting aside the impugned order and allowing the appeal.
4. Shri MH Shaikh, learned JDR appearing for the Revenue reiterated the department’s view and prayed for rejection of the appeal.
5. I have considered the rival submissions and gone through the case records. I observe that the Commissioner in the finding portion of the order has reached a conclusion that the appellants (exporter) have contravened the provisions of Section 11 and Section 50(2) of the Customs Act, read with Section 74 of the Trade and Merchandise Marks Act, 1958, The Commissioner has not been able to show any Notification issued under Section 11 of the Act prohibiting export of textile fabrics in case the exporter has marked the goods as manufactured “In China”. Such goods have not been declared as “specified goods”, export of which is prohibited. Except silver, no other goods have been specified as prohibited goods for export outside the country. Therefore, I am of the view that order of confiscation of the goods was not in accordance with law. Consequently, penalty on the appellants under Section 114(1) is not imposable. I also observe that though the adjudicating authority has mentioned the penal provision in the finding portion of the order, he has not indicated in the order portion, under which particular Section, penalty has been imposed. The exporter has also not contravened the provisions of Section 50(2) since he has presented the shipping bill and subscribed to the declaration of the goods. Further, in view of the fact that the exporter has clearly mentioned in the Shipping bill the fact that the goods have been manufactured in India, and the goods were sealed and stuffed by the Central Excise Officers, the mere fact that it has not been mentioned so, on the fabrics itself, cannot be a reason for the alleged contravention of Section 74 of the Trade and Merchandise Marks Act, 1958. In view of what has been discussed above, I set aside the impugned order and allow the appeal with consequential relief if any.
6. Operative portion of this order was pronounced in the open Court on 6.8.2004.