RAINBOW SILKSAND ORS. Vs. COMMISSIONER OF CUSTOMS (EXPORT)
LAWS(CE)-2015-10-2
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on October 13,2015

Rainbow Silksand Ors. Appellant
VERSUS
Commissioner of Customs (Export) Respondents


Referred Judgements :-

SRIPAD UPADHYAY V/S. CC CHENNAI [REFERRED TO]
YASH EXPORTS INC V/S. COMMISSIONER OF CUSTOMS,LUCKNOW [REFERRED TO]
VRUNDAVAN EXPORTS V/S. COMMISSIONER OF CUSTOMS (EXP),MUMBAI [REFERRED TO]
SURESH JHUNJHUNWALA V/S. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS,HYDERABAD [REFERRED TO]
MALBORO ELECTRONICS PVT. LTD. V/S. COMMISSIONER OF CUSTOMS,JAIPUR [REFERRED TO]
TEXPORT INDIA V/S. COMMISSIONER OF CUSTOMS,MUMBAI [REFERRED TO]
KAVIA CARBONS V/S. COMMISSIONER OF CUSTOMS TUTICORIN [REFERRED TO]
YASHRAJ INDUSTRIES V/S. COMMISSIONER OF CENTRAL EXCISE,MUMBAI -IV [REFERRED TO]
LAXMAN OVERSEAS V/S. UNION OF INDIA [REFERRED TO]
VISHWAJYOTI IMPEX V/S. COMMISSIONER OF CUSTOMS (ADJ),MUMBAI [REFERRED TO]
TRUSTWORTH ENTERPRISES V/S. COMMISSIONER OF CUSTOMS,TUTICORIN [REFERRED TO]
MERCANTILE INDIA V/S. COMMISSIONER OF CUSTOMS,CHENNAI [REFERRED TO]
RAMESH JAIN V/S. COMMISSIONER OF CUSTOMS (G),MUMBAI [REFERRED TO]
ASIAN EXPORTS V/S. COMMISSIONER OF CUSTOMS (EXPORT),MUMBAI [REFERRED TO]
SHEIKH MOHAMMAD OMER VS. COLLECTOR OF CUSTOMS CALCUTTA [REFERRED TO]
PRINCIPAL APPRAISER EXPORTS COLLECTORATE OF CUSTOMS AND CENTRAL EXCISE VS. ESAJEE TAYABALLY KAPASI CALICUT [REFERRED TO]
HIRA LAL HARI LAL BHAGWATI VS. C B I NEW DELHI [REFERRED TO]
OM PRAKASH BHATIA VS. COMMISSIONER OF CUSTOMS NEW DELHI [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS VS. SURESH JHUNJHUNWALA [REFERRED TO]
STATE OF MAHARASHTRA VS. BHAURAO PUNJABRAO GAWANDE [REFERRED TO]
SARAVANI IMPEX PVT LTD VS. ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF REVENUE INTELLIGENCE CHENNAI [REFERRED TO]
SUBHASH EMBROIDERY WORKS VS. UNION OF INDIA [REFERRED TO]
KOBIAN ECS INDIA PVT LTD VS. COMMISSIONER OF CUSTOMS [REFERRED TO]
SURESH ENTERPRISES VS. COMMISSIONER OF CUSTOMS [REFERRED TO]
Madhumilan Syntex Ltd. VS. Syndicate Bank [REFERRED TO]
THIRD MEMBER ON REFERENCE : MS. JYOTI BALASUNDARAM, VICE-PRESIDENT ADVANCE EXPORTS VS. COMMISSIONER OF CUSTOMS, KANDLA [REFERRED TO]
HINDUSTAN AERONAUTICS LTD. VS. COMMISSIONER OF CUSTOMS, BANGALORE [REFERRED TO]
KANHAIYA EXPORTS (P) LTD. VS. COMMR. OF CUS. (PORT), KOLKATA [REFERRED TO]
RAMAYAN IMPEX VS. COMMISSIONER OF CUSTOMS [REFERRED TO]
DIMENSION OVERSEAS PVT. LTD. VS. C.C., ICD [REFERRED TO]
G.P. JAISWAL, VS. CC [REFERRED TO]
COMMNR. OF CUSTOMS VS. G.P. JAISWAL AND ORS. [REFERRED TO]


JUDGEMENT

C.J. Mathew, Member (T) - (1.)The issue to be decided by this Larger Bench is whether the provisions of Ss. 113(d) and 114 of the Customs Act, 1962 are invocable in the case of export under Duty Entitlement Pass Book (DEPB) scheme or not.
(2.)Briefly stated the facts leading up to this reference are: the appellant, M/s. Rainbow Silks, filed shipping bill No. 7010127 dated 22nd October 2008 through their Customs House Agent, M/s. Delta Logistics at Air Cargo Complex Mumbai for export of goods described as dyed fabrics made from 100% polyester filament yarn with embroidery. Export shed officers, noticing that the invoice declared the export goods to have dimensions of 6.3 metres x 1.12 metres, examined the packages and found them to contain embroidered sarees, hemmed and ready to use. The examination covered five other bills filed at the same time totally valued at Rs. 3828937.78. For the purposes of DEPB, the goods as described in the shipping bills would be classified as fabric lengths at serial No. 43A of the schedule with eligibility at 8.2%. Sarees, on the other hand, are entitled to only 6.6% being classifiable as made -ups at serial No. 43B and thus entitled to DEPB credit of Rs. 252209.89 against the claimed amount of Rs. 313972.87. Consequent upon the detection of the mis -declaration purportedly to secure undue benefit of duty -free imports, proceedings were proposed to be initiated for confiscation of the goods and imposition of penalty. The appellant waived the right to be issued with show cause notice under Sec. 124 of Customs Act, 1962 and the original authority, Commissioner of Customs (Export), Air Cargo Complex, Mumbai, adjudicated the matter after hearing the exporter and Customs House Agent. In the impugned order CC/PMS/50/2008 ADJACC dated 17th November 2008, the export was permitted subject to DEPB entitlement being restricted to 6.6%. The goods, held to be liable for confiscation under Sec. 113(d)/(i) of Customs Act, 1962, were also confiscated under Sec. 113(d) with option to redeem the same on payment of fine of Rs. 75000. Penalties were imposed on the exporter and Customs House Agent. The goods were redeemed and penalty paid by the appellant -exporter before export of the goods. The appellant, thereafter, filed an appeal against the impugned order and another appeal was filed by M/s. Delta Logistics against the personal penalty imposed on them; both these came up before the Single Member Bench of this Tribunal.
(3.)The Single Member Bench hearing the two appeals took note of the contention of the learned Counsel for the appellant who, relying on the decision of this Tribunal in Kanhaiya Exports (P) Ltd. v/s. Commissioner of Customs (Port), Kolkata [ : 2006(204) ELT295 (Tri -Kol)], claimed that in matters relating to export under the DEPB scheme, Customs authorities are bereft of jurisdiction to order confiscation and penalty. Likewise the decision in Texport India v/s. Commissioner of Customs, Mumbai [ : 2006 (199) ELT 97 (Tri -Mum)] was also cited to bolster this claim. The Bench also noted the argument of the learned Authorized Representative that Sec. 50 of the Customs Act, 1962 required declaration of description and that the exporter had attempted to mis -declare with intent to avail undue benefit under DEPB scheme. Citing the decision of the Tribunal in Asian Exports v/s. Commissioner of Customs (Export), Mumbai [2009 (238) ELT 85(Tri -Mum)], which accepted the argument of Revenue that proceedings under Sec. 113 and 114 were valid when overvaluation had been admitted to by the exporter, and in Ramesh Jain v/s. Commissioner of Customs (G), Mumbai [2009 (238) ELT 783 (Tri -Mum)] it was contended that the impugned order was legal and proper. Owing to the contrary views of the Tribunal as reflected in the cited judgments, the Single Member Bench sought the intervention of a Larger Bench on the reference stated supra.
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