ESWAR EXPORTS HOUSE Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The Commissioner of Customs has imposed a penalty of Rs. 1 lakh on the appellants under Section 114 of the Customs Act after holding that the subject goods are liable to confiscation under Section 113(d) and (1) of the Act. The present application seeks waiver of pre -deposit and stay of recovery in respect of the penalty amount.

(2.) The case involves three shipments of Ballpen under DEPB scheme. The Department alleged that the F.O.B. value and Present Market Value (PMV) of the goods were misdeclared by the party with intent to get higher DEPB credit. The Commissioner did not sustain the allegation of misdeclaration of F.O.B. value. He, however, held against the party insofar as PMV was concerned. It was held that the exporter had misdeclared PMV and, on this basis, the goods were held liable to confiscation under Section 113(d) and (1) of the Customs Act. Ld. Counsel submits that the goods were not so liable. It is submitted that there was no prohibition in law against export of the subject goods. Any misdeclaration of PMV of the goods did not mean prohibition on export for the purpose of Clause (d) of Section 113. Ld. Counsel further submits that Clause (1) was not applicable at all inasmuch as the subject goods was not "specified goods" within the scope of Chapter IV -B of the Customs Act. Ld. Counsel, therefore, claims a strong prima facie case.

(3.) Ld. DR submits that 'prohibition' within the meaning of Clause (d) of Section 113 includes restriction also and, therefore, the subject goods were rightly held liable for confiscation and, accordingly, the penalty was rightly imposed on the party.