TRADE WIDE EXPORTS Vs. COMMISSIONER OF CUSTOMS, MANGALORE

JUDGEMENT

(1.) THE appellant filed a shipping bill for export of 1900 pieces of casuarina wood poles (central poles for building construction). They also indicated the size of each pole on 12 feet and diameter 3.5 inches and above at one end. The consignment was examined and allowed to be stuffed in the container and the officer examining the consignment did not indicate any difference of opinion as regards the declaration given by the appellant as far as the description as well the classification of the poles which was indicated by them as CTH 4403 20 20 was also accepted. After Let Export was given, the consignment was intercepted by the DRI and consequently, proceedings were initiated which has resulted in confiscation of the goods and imposition of redemption fine of Rs. 50,000/ - and penalty of Rs. 50,000/ - taking a view that the item which was presented for export has to be considered as fresh cut casuarina wood in rough logs with bark. The appellant is seeking stay against recovery of the penalty and is in appeal against the impugned order. Both sides were heard for considerable time and the matter was also considered in sufficient depth. Both sides agree that the matter can be decided finally at this stage itself. Accordingly, the requirement for pre -deposit is waived and the appeal is taken for final decision.

(2.) I have considered the submissions made by both sides. The question to be decided in this case is whether the items presented for export can be considered to be prohibited and if so, there was a misdeclaration or an attempt to export prohibited goods by the appellant justifying the imposition of redemption fine and penalty.

(3.) THE Revenue has relied upon the test report, according to which the samples were considered as wood and containing bark to an extent of 3 -5% and species was identified as casuarina. According to the learned Addl. Commissioner (AR), the report indicating that the sample of wood goes against the assessee because wood in primary form is classifiable under 4401 of ITC (HS) and according to Foreign Trade Policy, the wood classified under 4401 are prohibited for export. On the other hand the learned advocate has submitted that there was a NOC issued by Deputy Conservator of Forest Department, Mangalore Division who after taking note of the item being exported and considering the law as applicable has issued NOC for export. Further, he also drew my attention to the clarification issued by DGFT who has also taken a view that the items proposed to be exported are not covered by the Foreign Trade Policy. This clarification was received by the appellant by making an application under RTI Act and according to the learned Addl. Commissioner (AR) reply given under RTI Act cannot be considered as valid. It is also not in dispute that the appellant had exported four consignments earlier which were allowed by the customs authorities.