SHRI DURGADATTA MISHRA Vs. COMMISSIONER OF CUSTOMS (EXPORT)

JUDGEMENT

(1.) THESE are 17 appeals arising out of the order of Commissioner holding that export goods totally valued at Rs. 80,20,58,389/ - under claim by advance licence were mis -declared in order to get undue benefits for import of raw materials to which the exporter namely M/s B.O.F.L. were not entitled and held them liable to confiscation under Section 113(d) of the Customs Act, 1962 and imposing penalty of varying amounts on M/s B.O.F.L., its Managing Director, Executive Director, Director and other officers and on M/s VPL and its officers who also associated with M.s B.O.F.L. in obtaining advance licence from M/s DGFT by mis -representation and has also exported products on behalf of M/s BOFL and subsequently purchased the advance licenses issued in favour of M/s BOFL. Penalties have also been imposed on the other transferee of the licenses who have imported the goods etc.

(2.) THE brief facts of the case are that the main appellant M/s BOFL is a manufacturer and exporter of de -oiled Soyabean cake (DOC) also described as Soyabean Meal/Toasted Soyabean Extracted Meal/Khali etc. obtained from solvent extraction of soyabean oil from soyabean. The main raw materials used in the manufacture of soyabean oil and De -Oiled Cake are seeds of soyabean, hexane and coal. Coal is used to make steam and hexane is used for oil extraction. Towards the end of 1998 and early 1999 M/s BOFL applied for certain quantity based advance licenses to the DGFT, Pune and DGFT, Mumbai initially against determination of ad -hoc norms by Regional Advance Licence Committee (RALC) or Zonal Advance Licence Committee (ZALC) in respect of export of Indian Toasted Soyabean Meal (ITSM), Indian Toasted Soyabean Extract (ITSE), Pure Yellow Flaker type and subsequently against SION. A1814 of the I -O Norms (Input -Output) of product group "Chemicals and Allied Products" for export of Lecithinised High Protein Oil Seed Based Meal (LHOSBM) containing minimum 0.075% of Vitamin B, C and E. In the applications made to the DGFT, it had declared that in addition to hexane, various other inputs specified against SION A1814 were used or required for use in the manufacture of export product. Based on the applications made, it had obtained 11 Quantity Based Advance Licenses issued by DGFT Pune and Mumbai.

(3.) IN most of the cases, exports were made before obtaining the licenses and in some cases, exports were made after obtaining the licenses towards fulfillment of its export obligation. The exports were made not only by M/s BOFL but also by 3rd party exporters. In the Shipping Bills filed, the export product was described as LECITHINISED HIGH PROTEIN OIL SEED BASED MEAL (LHOSBM) CONTAINING MINIMUM 0.075% OF VITAMINS B, C and D (INDIAN TOASTED SOYABEAN MEAL PURE YELLOW FLAKER TYPE)