(1.) THIS appeal is directed against the Order -in -Original No. 1/2005 dated 28 -2 -2005, passed by the Commissioner of Customs, Visakhapatnam.
(2.) THE brief facts of the case for consideration are as under : -
(3.) THE learned Counsel appearing on behalf of the appellant contested the impugned order on various grounds. He submitted that the Adjudicating authority has not appreciated the factual and the legal position. He submitted that the goods which were imported were cleared on first appraisement basis. It is submitted that the manifest quantity is only 3.5 MTs and by any stretch of imagination, 7.432 MT cannot escape the notice of customs staff. It is the submission that the Commissioner of Customs failed to take cognizance of Export Manifest filed at the port of loading, i.e. Myanmar. It is the submission that the Commissioner was not aware of the procedure to procure the shrimp locally. It is the submission that the appellants had procured the shrimp locally and also imported from Myanmar and mixed them together and sent to supporting manufacturer, M/s. Devi Fisheries who in turn sent to M/s. Satya Sea Foods who finally exported the consignment. He submitted that the local procurement of shrimp was made to make up for the deficit catch, there was no intention either to evade any customs duty or to indulge in smuggling as alleged. He submitted that the sales realization figures had been properly accounted for and reflected in the books of accounts. It was also the submission that the appellants had not complied with the export obligation, but there was no intention to misuse the provisions of DEEC licence. It is the submission that once duty foregone is realized by encashment of Bank Guarantee, the question of default does not arise.