VIBHUTHI EXPORTS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) These eight appeals are filed by the appellants against the orders of the Commissioner of Customs, Mumbai and Commissioner of Customs, Jaipur. The issue involved in all these appeals is common, therefore, these have been taken up together for decision.

(2.) The facts, in brief, are that M/s. Vibhuti Exports, Jaipur obtained seven advance licences under quantity based DEEC Scheme for duty free imports of waste lubricating oil with obligation to export reclaimed refined lubricating oil after refining the imported waste oil equal to 30% of the imported quantity. All the advance licences were registered with Mumbai Custom Port as port of registration and M/s. Rajasthan Lube Jaipur was indicated as manufacturer of the reclaimed lubricating oil. M/s. Vibhuti Exports is merchant -exporter and it is a proprietory concern of M/s. Anjana Jagetia. Her father Shri Gulab Chand Jagetia was Chief Executive of M/s. Vibhuti Exports looking after the work of the import and export of the firm.

(3.) In respect of other five licences namely licence No. 2277827 dated 5 -11 -92 and 1535022 to 1535025 all dated 26 -2 -93, M/s. Vibhuti Exports adopted the same modus operandi as adopted in two advance licences mentioned in the preceding paras. They inflated the export quantity of reclaimed lube oil in the shipping bills, invoices etc. by showing export of the entire quantity of their export obligation and get the DEEC books endorsed with fulfilment of export obligation and get the LUT released by Jt. DGFT, Jaipur. However, on apprehension of being caught, they changed their mind and then made a request to DGFT for extension of period of export to fulfil the export obligation. DGFT extenued the period to fulfil export obligation up to 31 -1 -96 in respect of these five advance licences. Initially M/s. Vibhuti Exports filed shipping bill for export of reclaimed lube oil equal to the quantity under export obligation in terms of barrels of 44 gallons and for full FOB value of the export obligation quantity. The FOB value mentioned in the shipping bills, invoices, GRs etc. was for full export obligation in order to claim fulfilment of export obligation under the respective licences. However, after changing their mind, they made more exports in respect of these five licences and claim before their bankers, M/s. Corporation Bank, Jaipur that no foreign exchange was to be realized for subsequent exports under extended period as full value had been realized in advance along with the sale proceeds of the initial exports for each of the five licences. Even after including the exports made under these five advance licences during the extended period, it was found that M/s. Vibhuti Exports were not able to fulfil the export obligation in terms of quantity for all these five advance licences. It was found during investigation that there was a short levy of duty on the imported waste oil for which export obligation was not met for these advance licences, which worked out to Rs. 73,874/ - in respect of licence No. 2277827, Rs. 2,24,853/ - in respect of advance licence No. 1535022, Rs. 97,034/ - in respect of advance licence No. 1535023, Rs. 58,474/ - in respect of advance licence No. 1535024 and Rs. 3,82,065/ - in respect of advance licence no. 1535025. Thus, it was found that M/s. Vibhuti Exports has not fulfilled the export obligation in respect of these five advance licences by violating the conditions of Notification no. 204/92 dated 19 -5 -2002 and appeared to have evaded duty of Rs. 8,36,300/ - which was recoverable from them. Out of this total duty amount of Rs. 8,36,300/ - they appeared to have evaded Rs. 4,40,539/ - relating to imports under advance licence no. 1535024 and 1535025 made through ICD, Jaipur and the remaining amount of Rs. 3,95,761/ - relates to imports made through Mumbai Customs Port. It also appeared that in respect of exports made during the extended period, no foreign exchange was realized for the above said 5 advance licences. M/s. Vibhuti Exports did not submit GR forms to their bankers and obtained Revised Bank Realization Certificate from their bankers by misrepresentation. Thus these exports during extended period were in violation of notification 204/92 -Cus. read with Export Import Policy. Duty evaded on import of waste oil on this count worked out to Rs. 37,34,796/ - (Rs. 25,34,394/ - for imports from Mumbai and Rs. 12,00,402/ - for imports through ICD Jaipur).