Per P.S. Bajaj : The above captioned two appeals have been filed against the common order in original vide which the Commissioner of Customs has ordered the confiscation of the goods and imposed penalties on the appellants as detailed therein. The appellant No. 1 is a proprietorship concern of Shri Sudhir Malik who is carrying out export business. One container containing the export consignment of PVC soles, after clearance by the Customs officers from the Inland Container Depot, was intercepted on 25.3.99 by the officer of the DRI on receipt of information that the consignment was grossly over-invoiced. The container was brought back in the premises of ICD. The driver of the trailer who was carrying that container to Mumbai, was questioned by the officers. The container was opened and the goods PVC soles were examined. On examination, it was found that 570 cartons of PVC soles of 57,000 pairs approximately valued at Rs. 2.36 crores (FOB value) were being exported by the firm appellant No. 1. The representative samples were drawn from cartons and sealed separately. The original, duplicate and triplicate copies of shipping bills on which assessment was made in respect of that export consignment, together with the invoices and packing lists and copy of the purchase order, were resumed by the officers for investigation. The CHA Shri G.P. Jaiswal was also interrogated for having presented the shipping bills for export of the goods under the DEPB Scheme. He disclosed the name of one Ramesh Kumar Mishra who handed over the shipping bills and related documents to him for submission before the Customs authorities. The officers thereafter interrogated Shri Rakesh Mishra who disclosed that the goods belonged to Shri Sudhir Malik, proprietor of the firm (appellant No. 1) who wanted to export the same.

2. On completion of the investigation, the show cause notice was issued to Shri Sudhir Malik, proprietor of firm appellant No. 1 as well as to appellant No. 2 and others namely, Shri Rakesh Mishra, Rajiv Sethi, J.P. Jaiswal, Rakesh Srivastava, Vinod Kumar for confiscation of goods and imposition of penalty. The Commissioner through the impugned order adjudicated the show cause notice.

3. We have heard both the sides.

4. The learned Counsel has at the very outset contended that on account of over-valuation of the goods, the export of which was not prohibited at that time under the law, no order regarding the confiscation of the same could be legally passed. Therefore, the impugned order regarding the confiscation of the goods deserves to be set aside, on this ground alone. He has placed reliance on the ratio of law laid down in JP Jaiswal & Others vs. CC Lucknow [2004 (112) ECR 461]. But we are unable to subscribe to this contention of the learned Counsel being wholly mis-conceived. The Apex Court in the Case of Om Prakash Bhatia vs. CC Delhi [2003 (57) RLT 371 (SC)=2003 (155) ELT 423] has defined the expression 'prohibited goods' attempted to be exported, as appearing in Section 113(d) of the Customs Act. It has been observed by the Court ''that where the goods attempted to be exported had been over invoiced, those would fall within the ambit of 'prohibited goods' under Section 113(d) of the Customs Act and confiscation of the same can be legally ordered. When the conditions required to be specified before or after the clearance of the goods are not fulfilled by the exporter/importer, the goods sought to be exported/imported by him would become 'prohibited goods' within the meaning of sub-section 2(33), Section 113 (d) of the Act." In view of this judgment of the Apex Court, the observations of the Tribunal in JP Jaiswal case (supra) to the contrary that on account of over-valuation of the export goods, no confiscation can be ordered, cannot be applied. In that case, the Tribunal has no doubt referred to the case of Commissioner of Customs Vs. Prayag Export [2003 (110) ECR SC] but the ratio of law laid down in the said case by the Apex Co