LOKNATH EXPORT Vs. COMMR. OF CUS., AIRPORT, KOLKATA

JUDGEMENT

(1.) INSTANT appeals are directed against the order of Collector of Customs, Calcutta Airport. By the said order, the Commissioner has imposed a penalty of Rs. 15.00 lakhs under Section 114(i) and or Section 114(iii) of the Customs Act, 1962 on the ground that the Wall Covering (Article of Silk) exported under Shipping Bill dated 13 -2 -03 were liable to confiscation under Section 113(d) read with Section 113(i) & (k) of the Customs Act, 1962 and drawback claim on deemed export under Section 76(i)(b) of the Customs Act, 1962 is liable to be rejected. The other appellant has been imposed penalties under the provisions of Section 114(iii) of the Customs Act, 1962.

(2.) THE goods were supplied by the appellants as a Domestic Tariff Area (DTA) supplier of Wall Coverings (Article of Silk) which entered Falta Special Economic Zone under their Invoice No. 001/02 -03 dated 19 -12 -2002 and 002/2 -03 dated 15 -1 -2003 and at the time of entering the goods, they were examined by the competent officers and on being satisfied, they allowed the entry into the said Zone. This permission granted is sought to entitle a claim of Drawback in this case under Sub -serial 62.19 of the Drawback Schedule. This claim was however not sanctioned. The DRI officers investigated the case and issued the present Show Cause Notice on the ground that the said claim of Drawback, on the quantity, was much higher than the goods that they actually entered the Zone and though a claim of drawback amounting to Rs. 34,93,750/ - for 10750 kgs of Wall Coverings (Article of Silk) was before the Development Commissioner, Falta SEZ falling under sub serial No. 62.19 of the Drawback Schedule but the value of the goods as per export document forwarded by Dubai Customs was found to be US$ 8189.76 which was equivalent to Rs. 3,90,651/ - that the Drawback amount claimed was three times more than the said value of the goods, the claim was, therefore, not entitled.

(3.) RELIANCE on the declarations made to Dubai Customs cannot be the sole reason to come to a conclusion that the valuation declared at the time of removal of the goods from the DTA into SEZ would necessarily be incorrect and therefore the claim of Drawback should not be accepted. We find that there is no concept of deemed export under the Customs Act, 1962 and that concept is only under the Foreign Trade (Development and Regulations) Act to be administered by Ministry of Commerce and the Development Commissioner, since the incentive in this case against deemed export, attracting Foreign Trade (Development and Regulations) Act, has to be considered; prima facie of the said claim by the officers of Customs cannot be adjudicated and the issue of jurisdiction raised by the appellant will have to be gone into in detail at the regular hearing. Since jurisdiction goes to the root of the matter, the penalties and other consequences arrived at is required to be stayed and pre -deposit thereof is required to be waived pending regular hearing of these appeals.