Per Gowri Shankar :

In the order impugned in this appeal, the Commissioner has confiscated under clause (d) of Section 113 of the Act, a consignment of footwear tendered for export by the appellant and imposed penalty on the appellant under Section 114 of the Act on his finding that the value of the footwear was inflated in order for it to claim benefits under the duty entitlement pass book (DEPB) scheme. Such benefits are percentage of the export value.

2. It has been the consistent view of this Tribunal that clause (d) of Section 113 of the Act did not apply in such cases for the reason that export of the goods was not prohibited. This is the view taken in the Tribunal's decision in Badriprasad Pvt. Ltd. Vs. CCE 1995 (80) ELT 624, Shilpi Export Vs. CCE, 1996 (13) RLT 39=1996 (83) ELT 302, to cite only two. We note that an appeal against the last decision has been dismissed by the Supreme Court reported in 2000 (115) ELT A219.

3. Accordingly we allow this appeal and set aside the impugned order.