UDAL ORGANICS (P) LTD. Vs. CCE, KANPUR

JUDGEMENT

(1.) The brief facts of the case are that the appellants, who were engaged in the manufacture and exports of Zinc Oxide, filed Shipping Bill No. 1490 dated 26.11.98 for export of 205500 Kgs. of Zinc Oxide (in 600 bags) under claim for duty drawback, that they claimed a total amount of Rs.2,46,000/ - as drawback @Rs.12 per Kg., that, on 100% weighment, only 9082 Kgs. (in 400 bags) of Zinc Oxide were found to have been produced for exportation as against the declared quantity of 20500 Kgs., that the said quantity of 9082 Kgs. of the goods was seized by the Customs officers who believed that the goods were attempted to be improperly exported and hence liable to confiscation, that the appellants waived show -cause notice and presented themselves for personal hearing on 30.11.98, that upon such hearing, the Dy. Commissioner of Customs passed order dated 7.12.98 confiscating the confiscating the aforesaid 9082 Kgs. of Zinc Oxide under Section 113(i) of the Customs Act with option for redemption on payment of fine of Rs.1.5 lakhs ans also imposing on the party a penalty of Rs.5 lakhs under Section 114(iii) of the Act, and that order of the Dy. Commissioner was upheld by the Commissioner (Appeals) in the appeal filed by the party. Hence the present appeal before the Tribunal.

(2.) Carefully examined the records and heard both sides.

(3.) Arguing for the appellants, 1d. Advocate Sh. Bipin Garg submits that the lower authorities finding of mis -declaration of quantity of export goods in Shipping Bill is unsustainable. He explains that the appellants had, in their invoice issued on 26.11.98 at the time of clearance of the goods from their factory, clearly stated Registration Number of two trucks for transportation of the goods; that Sh. R.K. Yadav, Director of the Company had, in his statement recorded by the Customs officers, explained that 400 out of the 600 bags were transported in truck No. UP 78 N -2082 and remaining 200 bags were transported in the other truck No. UHH 98; that he had further explained that the latter truck carrying 200 bags of Zinc Oxide could not reach along with the former truck at the Inland Container Depot (ICD) on account of a break -down of the vehicle on its way and that, at the time of weighment of the goods, only the 400 bags of Zinc oxide were available. Ld. Advocate further submits that the aforesaid 200 bags of Zinc Oxide were also brought to the ICD on the next day (27.11.98). These facts and circumstances, according to counsel, would clearly indicate that there was no attempt on the part of the appellants to mis -declare the quantity of export goods for fraudulent purpose of higher drawback. Regarding the finding of the lower authorities that the appellants had even mis -declare the weight of Zinc Oxide contained in the 400 bags, the Counsel submits that the weight of the goods in their factory could not be taken on account of their weighbridge being out of order and the same was, therefore, taken on a weighbridge outside the factory as evidenced by copies of the certificates dated 26.11.98 issued by M/s Eastern Dharam Kanta available on record. Counsel submits that the appellants were willing for reconciling any such difference in weight found at the ICD by accepting weighment results and that such willingness was duly intimated to the officers by Sh. Yadav in his statement. In these facts and circumstances, there was no warrant for concluding that the appellants had mis -declared the quantity of the goods with fraudulent intention to claim drawback against a quantity of 20500 kgs. He, therefore, submits that the confiscation of the 9082 Kgs. of the goods and the imposition of penalty on the party were not justifiable. He further submits that the quantum of redemption fine imposed is dis -proportionate to the value of the quantity of 9082 Kgs. of Zine Oxide. He has a further case that the quantum of penalty imposed is also exorbitant. He, therefore, prays for setting aside the orders of the lower authorities and allowing the appeal.