ORDER
C.N.B. Nair, Member (T)
1. The impugned order has confiscated two export consignments of readymade garments for contravening the provisions of Section 50 read with Section 76 of the Customs Act, 1962. The confiscation has been ordered under Sections 113(d) and (i) [presumably 113(h)(ii)] of the Customs Act. A redemption fine of Rs. 1,26,000/- was imposed to re-claim the goods and a penalty of Rs. 63,000/- has been imposed on the exporter.
2. The facts of the case are that the exporter had filed customs documents for export of two consignments of ladies cotton long skirts. The values declared were about Rs. 16.6 lakhs and Rs. 8 lakhs respectively at a rate of US $ 1.00 per piece. The customs authorities carried out market enquiry about the declared prices and came to the conclusion that the price would be between Rs. 20 to Rs. 22 per piece. Thereupon, allegation was raised that the exporter had declared a high value for the purpose of obtaining excess drawback. When the exporter was made aware of this allegation, he filed a letter, dated 24-1-1999 stating that drawback may be paid to him as applicable to export value of Rs. 22/- per piece of the goods and the export may be allowed.
3. It has been submitted before us that there was no misdeclaration of export value. The exporter has since realised full value of the consignment as declared. Certificate of foreign exchange realisation, dated 17-2-2000 from Bank of Baroda was made available during the hearing. It was also submitted that the appellants never admitted the over-valuation of goods. In view of the objections raised by the Customs, he had only agreed that drawback may be paid at the value of Rs. 22/-. This could not be treated as admission of overvaluation. The appellants, therefore, submit that confiscation of the goods and imposition of penalty were unjustified in the facts of the case.
4. Learned DR drew our attention to provisions in Sections 76,113(d) and 113(h)(ii). We are unable to understand how these provisions have been violated in the instant case. Section 76 relates to prohibition relating to payment of drawback. Sub-section (b) of this Section states that no drawback shall be allowed in respect of any goods the market price of which is less than the amount of drawback due thereon. In the instant case, drawback is stated to be at the rate of 15% of the value of the goods. At the declared value, it works out to Rs. 6/- per piece. The price of the goods even according to the market enquiry of the Customs is Rs. 20/- to Rs. 22/-. So, this Section is clearly not attracted. With reference to Section 113, we find that this Section relates to confiscation of export goods and states that any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition shall be liable to confiscation. We have not been shown any prohibition against export of the garments in question. Subsection (h)(ii) of the same Section relates to confiscation of any goods entered for exportation under claim for drawback which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of drawback under Section 75. No case has been made that the exporter had furnished any wrong information with regard to fixation of drawback under Section 75. Therefore, the provisions of Section 113 were not available to the Customs authorities in the instant case. In these circumstances, we find the confiscation and imposition of penalty to be illegal. The impugned order is set aside in its entirety and the appeal is allowed with consequential relief, if any, to the appellants. However, as the appellants had agreed to payment of drawback at the value of Rs. 22/-, this order shall not apply to drawback claimed on the consignments.
