SURYA UDYOG LTD. Vs. COMMISSIONER OF CUSTOMS, VISAKHAPATNAM

JUDGEMENT

(1.) IN these appeals the issue involved is common therefore, these are being taken together for decision. Appeal No. C/122/2000 is filed by Surya Udyog Ltd., challenging the order of Commissioner of Customs, Visakhapatnam whereas Appeal No. C/130/2000 is the appeal filed by M/s. Falcon Marine Exports Ltd., challenging the order of Commissioner of Customs, Visakhapatnam. In both these appeals, the appellants are exporters who filed shipping bills for exporting shrimps. M/s. Surya Udyog in the shipping bill described the product as processed, preserved and frozen headless shrimps of species white shrimp (cultured) Surya brand and M/s. Falcon described the produced as processed, preserved and frozen headless shrimps of species black tiger shrimps (penaeus monodon) (cultured), Indian origin, fresh, frozen, headless shell on white (cultured) and black tiger (cultured) shrimps typee and nice brands. During examination of the goods of M/s. Falcon, it was found that out of 650 cartons of the goods, 550 cartons were white shrimps carton and the 100 cartons were black tiger shrimps. On random examination of 225 master cartons of white shrimps, it appears that the 72 cartons out of the entire consignment declared as cultured white were of sea white category. Similarly, in case of M/s. Surya Udyog Ltd., out of a consignment of 830 cartons, 148 cartons were found of sea white category as against cultured white as declared in the shipping bill. Accordingly, in both the cases, show cause notices were issued for making false declaration in violation of Section 50(2) of Customs Act with an intention to claim more DEPB benefits than entitled and proposing to confiscate the goods under Section 113(i) of the Customs Act and for taking penal action under Section 114(ii) of the Customs Act, 1962. In case of Falcon Marine Exports, the Commissioner confiscated 72 cartons of the sea white shrimps and pink brown shrimps but allowed final clearances of goods on payment of a fine of Rs. 1 lakh. He also imposed penalty of Rs. 1000/ - on M/s. Falcon Marine. In case of Surya Udyog, the goods were allowed final clearance for export on payment of a fine of Rs. 1.5 lakhs and a penalty of Rs. 1,000/ - was also imposed on the exporter.

(2.) SHRI K. Kishore Acharya, Advocate, appeared for the appellants and Smt. Radha Arun, SDR, appeared for the Revenue.

(3.) THE ld. Advocate for the appellants, Shri K. Kishore Acharya pleaded that the samples of the shrimps drawn from consignment were subject to visual identification only by Export Inspection Agency, Chennai and their report clearly says that samples appear to be sea white. However, the Export Inspection Agency opined that complete identification of the species is possible only in the head on - shell on - tail on shrimps. The shrimps exported in the instant case were headless, therefore, identification report of Export Inspection Agency, Chennai automatically becomes irrelevant to conclusively establish that the impugned shrimps were sourced from the sea. They had produced certificate of MPEDA, Bhubaneswar before the identification report of Export Inspection Agency at Chennai. This report was brushed aside by the adjudicating authority as not at all satisfactory explanation without bringing on record contrary opinion of any other expert on the subject. They relied on the following decisions : -