SANJAY AGGARWAL Vs. COMMISSIONER OF CUSTOMS, HYDERABAD

JUDGEMENT

(1.) THESE two stay applications arise from the Order -in -Original No. 04/2005 dated 15 -2 -2005. The Commissioner after adjudication of show cause notice dated 31 -7 -2003 has leveled the allegation of misuse of DEPB and Drawback Schemes by Shri Sanjay Aggarwal, Proprietor of M/s. Rama Enterprises. The Commissioner has re -determined the value of 11 Shipping Bills declared to be FOB value at Rs. 2,46,92,504/ - to Rs. 4,88,359/ -. Shri Sanjay Agarwal, Proprietor of M/s. Rama Enterprises by virtue of over valuation of export goods, namely garments had enjoyed drawback benefit of Rs. 38,71,243/ -. Therefore the Commissioner has ordered recovery of the said amount from Shri Sanjay Agarwal under Section 75 of the Customs Act, 1962 read with Rule 16 of Customs and Central Excise Duty Drawback Rules, 1995 read with Section 76(1)(b) of the Customs Act, 1962. He has also ordered for recovery of interest on the amount of drawback wrongly claimed. He has imposed penalties on the parties under Section 114(i)/114(iii) of the Customs Act, 1962, in the following manner : -

(2.) HEARD both the sides in the matter.

(3.) THE learned Sr. Counsel while referring to a large number of Tribunal judgments, contends that once the goods have been exported and the price has been realized, the question of confiscation and imposition of penalty does not arise. He drew our attention to the Tribunal judgments in the case of K. Kamala Bai v. Commissioner of Customs and C. Excise, Trichy [2005 (186) E.L.T. 459 (Tri. -Chennai)] and Chinku Exports v. Commissioner of Customs, Calcutta [1999 (112) E.L.T. 400 (Tribunal)] and other supporting judgments on this point. He contends that there is no evidence placed by the Revenue to substantiate the allegation brought out. On being raised with queries from the Bench on the admission made by the appellants with regard to the figures confirmed and declaring the excess value of the exported goods and opening several bank accounts in the names of various fictitious firms, etc., the learned Sr. Counsel points out that there is no clear evidence to prove the allegations except the statements recorded on duress. He submits that the order is not a speaking order. The contention of the appellants has not been considered and hence the adjudicating authority has violated the principles of Natural Justice. He submits that the exports were done during February 1999 and the proceedings were initiated after one year and nine months, hence the demand is barred by time. He contends that the penalty is not leviable as the profit is very marginal and the Income Tax Returns clearly disclose that the appellants have no amount to deposit. He submits that in view of the grounds taken in the appeal memo, the main appellant, Shri Sanjay Agarwal should be given full waiver of pre -deposit of the alleged drawback amount said to have been taken by him and the penalty imposed on him and others.