ORDER
T.K. Jayaraman, Member (T)
1. These three appeals are filed against the Order (Original) No. 03/2003, dated 15-3-2003, passed by the Commissioner of Customs, Visakhapatnam.
2. The brief facts of the case is as follows :-
M/s. Panax Cashew, Bhubaneswar exported the consignment of 700 cartons of W240 Indian Cashew nuts kernels, packed in tins, valued at Rs. 37,22,170/- under DEPB Scheme vide Shipping Bill No. 4001617, dated 20-10-2000 to M/s. American Dried Nuts Co. Ltd., Hong Kong. The goods were examined and allowed for export. The foreign buyer rejected the goods received. When the goods were re-imported, it was found that the goods were found to be Raw Cashew as against the Cashew nut kernel as declared in the Shipping Bill. Investigations were conducted by the Revenue and the proceedings were initiated and the show cause notice was issued as to why :-
(1) The goods exported under Shipping Bill No. 40001617, dated 20-10-2000 at a declared value of Rs. 37,22,170/- (FOB) and returned by the foreign buyer should not be confiscated under Section 113(d) read with Section 7(l)(a) of FEMA, 1999 and also under Section 118(i) of the Customs Act, 1962, for having been mis-declared in description and value of the goods i.e. by way of exporting raw cashew as against cashew nut kernel declared.
(2) The packing materials viz. tins and cartons containing the above goods should not be confiscated under Section 118 of the Customs Act, 1962; and
(3) Penalty under Section 114(i) should not be imposed on them i.e., M/s. Panax Cashew represented by its Proprietrix Smt. Sunanda Kar, Shri Ganganarayanan Kar, P/A holder of M/s. Panax Cashew and M/s. Chakiat Agencies.
The Commissioner of Customs in the impugned order had confiscated the goods returned by the foreign buyer absolutely. Further, he imposed the following penalties :-
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S/No. Name Amount of
penalty (Rs.)
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1. Smt. Sunanda Kar, owner of M/s. Panax Cashew. 2,00,000/-
The penalty shall be collected either from
the company or from the person i.e. Smt.
Sunand Kar.
2. Shri G.N. Kar 2,00,000/-
3. M/s. Chakiat Agencies 20,000/-
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The appellants have challenged the impugned order.
3. Shri M.S. Kumaraswamy, learned Consultant appeared for the appellants, M/s. Chakiat Agencies and Shri Suresh Kumar, learned Advocate appeared for the appellants, M/s. Panax Cashews and Anr. and Shri R.N. Viswanath, learned SDR appeared on behalf of the Revenue.
4. We have heard the parties. We find that when the goods were exported from India vide Shipping Bill dated 20-10-2000, from the records it appears that the examination of the Cargo allowed for export has been done. The examination report indicates that the goods were as per declaration. In other words, as per records, the Customs Department was satisfied that the export goods were Cashew Kernels only. The goods were stuffed in container HIMU 238479-8. The goods reached Hong Kong on 20-11-2000 and delivered to the consignee on 23-11-2000. However, the survey was done at the buyers premises on 27-1-2000. It was contended that as per survey report the container’s seals were broken. The appellants urged that this would indicate that the container was opened earlier. When the goods were re-imported, the container used was No. EASU 960589-2. The time lapse between the de-stuffing of the goods and the stuffing in another container was nearly 7 days. In view of the above facts, unless a thorough enquiry is done, it would be very difficult to establish mis-declaration by the Exporters and the CHA. On the basis of the available information, we cannot give a categorical finding of mis-declaration by the exporter and CHA especially when the Customs at Visakhapatnam have examined the goods did not find any mis-declaration. Therefore, we are inclined to give a benefit of doubt to the Exporters/CHA and set aside the penalties on the appellants. The appeals are disposed of to this extent.
(Operative portion of the order has been pronounced in the Court on completion of hearing)
