SUSHIL PARAKH Vs. COMMISSIONER OF CUSTOMS (PORT), KOLKATA

JUDGEMENT

(1.) BOTH the appeals are being disposed of by a common Order as they arise out of the same impugned Order passed by the Commissioner of Customs, Kolkata vide which he has confiscated the ball pens under the provisions of Sections 113(d) and 113(i) of the Customs Act, 1962, with an option to the appellants to redeem the same on payment of fine of Rs. 75.00 lakhs (Rupees seventy -five lakhs). The said consignment of Ball Pens were meant for export by the said appellants with the declared FOB value as Rs. 14.37 per piece. The Commissioner vide his impugned Order has held the FOB value of the ball pens to be determined as Rs. 2.785 per piece. In addition, he has also imposed penalty of Rs. 1.00 crore (Rupees one crore) upon Shri Sushil Parakh, Proprietor of M/s. Secure International under the provisions of Section 114(iii) of the Customs Act, 1962. Another penalty of Rs. 10.00 lakhs (Rupees ten lakhs) has been imposed upon M/s. S.K. Kanjilal under Section 114(iii) of the Customs Act, 1962, who is a Customs House Agent, under the provisions of Section 114(iii) of the Customs Act, 1962.

(2.) AS per facts on record, M/s. Secure International exported thirteen consignments of 36,07,200 pieces of CONCORD brand ball pens for which purpose they have filed a shipping bill with the Customs Authorities at Kolkata. The total FOB value of the consignment declared in the shipping bill was to the tune of Rs. 5,17,27,509.00 (Rupees five crores seventeen lakhs twenty -seven thousand five hundred nine). The goods were assessed and Let Export Order was passed by the Customs Authorities at Kolkata in terms of the provisions of Section 51 of the Customs Act, 1962. The consignment left the Kolkata Port after the clearance of the goods by the Customs Authorities. But the same were subsequently off -loaded at Visakhapatnam for detailed examination of the same, on account of information received by the Customs Authorities that there was misdeclaration in respect of the quantity and quality of the goods in question. Vide letter dated 11 -1 -2002 addressed to the Customs House Agent of the appellant company, they were requested to depute their representative for examination of the goods in question. However, the goods were examined subsequently without the representative of either the C.H.A. or the exporter on 13 -1 -2002 and it was found that there was a shortage of 4,44,960 pieces of the ball pens. The said export was under the drawback claim of Rs. 98,28,161.64 (Rupees ninety -eight lakhs twenty -eight thousand one hundred sixty -one and paise sixty -four). The Customs Authorities also entertained a reasonable belief that the FOB value declared by the appellants as US $ 0.30 per piece i.e. Rs. 14.37, was on the higher side. For the said purposes, they conducted a market survey in Visakhapatnam, on the basis of which they confirmed the belief that the consignment was over -invoiced. Accordingly, Mahazar of seizure dated 24 -1 -2002 was drawn in the presence of two independent witnesses seizing the goods covered by thirteen shipping bills under the provisions of Section 110(1) of the Customs Act, 1962.

(3.) AS a result of post -seizure investigations, the Office Premises of M/s. Secure International as also the residential premises of Shri Sushil Parakh, Proprietor of M/s. Secure International, were put to search respectively on 12 -1 -2002 and 15 -1 -2002.