PerV.K. Agrawal :

In these nine appeals, arising out of a common Order No. 133/97-Commr. dated 12.12.1997, passed by the Commissioner of Customs, Calcutta, the issues involved are whether the goods presented for export out of the country are liable for confiscation under Customs Act read with Foreign Exchange Regulation Act and whether the penalty is imposable on all of them under the Customs Act.

2.1 Briefly stated the facts are that a consignment of two hundred cartons of QTM of clocks containing one lakh pieces of QTM valued at Rs. 29,88,500/- was presented at Air Cargo Complex for export under shipping Bill No. ASF 2063 dated 21.7.1995 by M/s. Fortune Impex. The consignment was examined by the officers of the Directorate of Revenue Intelligence on 31.7.95. On examination of the goods, 16 cartons were found to be containing 8000 pieces of very old/used/repaired/working Q.T.M. of clocks valued at Rs. 80,000/- and 104 cartons were found to contain 92,000 pieces of very old/used/broken/non working Q.T.M. of clock having no commercial value. The goods were being exported under DEEC Scheme. The duplicate/triplicate copies of the shipping bills covering the goods was not available with the Customs House Agent M/s. India Mercantile Agency and Freight Forwarding Agent M/s. Burlilngton Air Express (India) Pvt. Ltd. After investigation, show cause notice dated 27.1.1996 was issued to 12 noticees (including Appraiser and Examiner of Customs House) for confiscation of the goods under the provisions of Customs Act read with Foreign Exchange Regulation Act (FERA) and for imposition of penalty.

2.2 The Commissioner of Customs, under the impugned Order, confiscated the impugned goods under Section 113 (d) and (i) of the Customs Act read with Sections 18 (1) and 67 of the FERA with an option to redeem the same on payment of fine of Rs. 80,000/-. The Commissioner also imposed following penalty :-

2.3 The Commissioner, however, exonerated Shri A.K. Kothari, Appraiser and Shri P.S. Upadhyay, Examiner.

3. Shri A.S. Sunderrajan, learned Advocate, alongwith Shri K.S. Venkataramani, learned Consultant, appeared for Appellants No. 1 to 3. The learned Advocate submitted that M/s. Fortune Impex, Appellant No. 1, obtained an order for export of Q.T.M. from M/s. J.N. Exports, Hongkong; that they placed an order for manufacture and supply for export of 1 lakh pieces of Q.T.M. with M/s. Chawla Enterprises Pvt. Ltd., Appellant No. 2; that there has been some mix up of the goods lying in the warehouse and that instead of sending the goods meant for export, Appellant No. 2 had despatched damaged/unserviceable/returned goods which were returned from customers and lying in the factory; that as soon as this was deducted the same was intimated to the proper officer of Central Excise incharge of M/s. Chawla Enterprises; that on or about 10.11.1995, M/s. Chawla Enterprises filed a declaration in form D-3 in respect of excisable goods. He, further, submitted that after examination of the goods the Customs Officers passed the Let Export Order; that they had presumably recorded an examination report on the reverse of Shipping Bill to the effect that the goods were found to be in accordance with the declaration contained on the S/B; that the impugned shipping bill has not been produced to them or the adjudicating authority; that non production of the Shipping Bill amounts to denial of principle of natural justice. He also mentioned that as per impugned Order, both Appraiser and Examiner had contended that the show cause notice did not spell out any cause of action against them nor disclose any involvement on their part in