BILWA LABS Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) MOVING the stay application arising out of appeal No. C/823/2012 filed against order of adjudication dated 11 -1 -2012, learned counsel submits that present adjudication related to past exports of 23601 MT of industrial salt valued by Customs authority at Rs. 40,02,26,193/ - holding that the goods exported was Muriate of Potash changing the classification from CTH 2827 39 90 to 3104 20 00 and imposed penalty of Rs. 75 lakhs. Enhancement of the value of export was made in adjudication arbitrarily to arrive at the above figure while proper value was declared by appellant. While value of industrial salt per kg. was Rs. 19. 57 declared in 151 shipping bills of past, Customs determined that @ Rs. 35/ - per kg. without any basis. The goods were not actually Muriate of Potash, but Customs authority arbitrarily and baselessly held the goods to be prohibited one without any prohibition thereof for export relying a test report not relevant to the present adjudication.

(2.) WHILE submission of the appellant were as above, Revenue opposes the same on the ground that the appellant failed to disclose source of procurement of Muriate of Potash exported by 151 shipping bills. Misdeclaration of description of the goods was made in the shipping bills to clear Muriate of Potash in the guise of industrial salt causing huge loss to Customs. Muriate of Potash was exported by appellant without licence contravening Customs law as well as EXIM Policy. So also fertilizer control order was violated. Statements recorded from the appellant and also others demonstrated that the goods as covered in the shipping bill of past were same as that was seized while attempted to be exported by appellant mala fide. When the appellant exported the offending goods without licence causing huge loss to customs by misdeclaration that called for issuance of appropriate show -cause notice invoking extended period to adjudicate the past exports in the present adjudication order and penalty was rightly imposed. When the appellant failed to prove that it made lawful export without misdeclaration and following the procedure prescribed under EXIM Policy, it was bound to face the adjudication. 2.1 It was also submitted by Revenue that valuation of goods of past export was quite reasonable and the misdeclaration crippled the appellant to challenge valuation when source of procurement was not proved by appellant. There was illegality from the beginning of non -disclosure of source of procurement of the goods and customs was defrauded. Therefore, Tribunal should not grant waiver of pre -deposit since Revenue has been seriously prejudiced by deliberate act of the appellant.

(3.) HEARD both sides and perused the records.