NICKUNJ SHAH Vs. COMMISSIONER OF CUSTOMS (EXPORT) ACC

JUDGEMENT

(1.) THE appeal arises from Order -in -Original No: CC -(RT) 41/2009 ACC, dated 21 -10 -2009 passed by the Commissioner of Customs (Export), Air Cargo Complex, Sahar, Mumbai. Vide the impugned order, the ld. Adjudicating authority has absolutely confiscated 1135 kgs. and 35.5 kgs. of nuclear grade graphite blocks sought to be exported by the appellant M/s. Nickunj Eximp Enterprises Pvt. Ltd. to Ward Commercial, Iran and Microsal International, Dubai and valued at Rs. 60,70,331/ - and Rs. 91,422/ - vide shipping bills Nos. 6524973, dated 10 -10 -2007 and 6528077, dated 13 -10 -2007, respectively, under the provisions of Section 113(d) of the Customs Act, 1962. Further a penalty of Rs. 30 lakhs each and Rs. 5 lakhs has been imposed on the exporter firm and its director, Mr. Nickunj Shah and Mr. Piyush N. Sanghvi, Partner of M/s. Parth Enterprises under the provisions of Section 114 of the said Customs Act. Aggrieved of the same, the appellants are before us. The facts relevant to the case are briefly as follows. The appellant M/s. Nickunj Eximp Enterprises Pvt. Ltd. (M/s. Nickunj, in short) filed two shipping bills Nos. 6524973, dated 10 -10 -2007 and 6528077, dated 13 -10 -2007 for export of 1135 kgs. and 35.5 kgs. of graphite blocks to Ward Commercial, Iran and Microsal International, Dubai. Samples of the goods were drawn on 5 -11 -2007 and sent to Bhabha Atomic Research Centre (BARC) for test and vide test report dated 29 -11 -2007, BARC confirmed that the purity level to be ranging from 0.575 to 1.749 ppm and density to be ranging from 1.83 to 1.85 and the graphite appeared to be nuclear grade. Therefore, the goods were seized under a panchnama dated 2 -4 -2008. Statements of Mr. Nickunj Shah, Director of the appellant firm and Mr. Piyush Sanghavi, Partner of M/s. Parth Enterprises, who is alleged by the appellant to be the supplier of the goods were recorded. Since the goods sought to be exported were Nuclear grade graphite/carbon having a purity better than 5 ppm boron equivalent and with a density greater than 1.5 gram/cc and required a permission/licence for export which the appellant did not have, a show cause notice dated 9 -4 -2008 was issued proposing confiscation and imposition of penalties. The said notice was adjudicated by the impugned order and the proposals confirmed. Hence the appeal.

(2.) THE ld. Counsel for the appellant makes the following submissions: - -

(3.) WE have carefully considered the rival submissions. Our findings and conclusions are enumerated in the ensuing paragraphs.