Per V.K. Asthana :

This is an appeal against Order-in-Original No. 56/98 dated 23.3.98 passed by the Commissioner of Customs consequent to the matter having been remanded by the Tribunal for de novo consideration. The issues involved, in brief, are as follows:

1.1 Non-repatriation of export proceeds in full.

1.2 Mis-declaration of the quantity of goods submitted for export and shipping bills and

1.3 Mis-declaration of their value on the shipping bill.

2. In these de novo proceedings, the impugned order records that two opportunities were given to the appellants for personal hearing, but since no one attended, the impugned order was passed ex-parte again. The order imposes penalty of Rs. 14.45 lakhs and Redemption Fine of Rs. 2.89 lakhs on the goods exported.

3. Heard Shri K.L. Rekhi, learned Consultant for the appellants. He submits that whereas in the first Order-in-Original which had been remanded by the Tribunal to the learned Commissioner of Customs, the penalty had been Rs. 10 lakhs, in the present order impugned, which has been passed ex-parte, as neither of the two intimations purported to have been sent were received by the appellants (he refers to the affidavit on this count on record), the learned Commissioner has even increased the quantum of penalty to Rs. 14.45 lakhs.

3.1 With respect to the charge of non-repatriation of export proceeds, learned Consultant submits that since the export was made on DB basis through the Syndicate Bank and since the said Bank did not take effective steps to recover the entire amount involved from the foreign buyer before parting with the negotiated copies of documents sent through the bank, therefore, after protracted correspondence with the foreign buyer a Civil Suit 2236 of 95 in the High Court of Delhi has been filed by the appellants both against the foreign buyer and the Syndicate Bank, New Delhi. On the question of law involved on this issue, learned Consultant submits that the delay for non-receipt of remittances on export goods is a matter falling under Section 18 (2) of the Foreign Exchange Regulation Act. The cross linkage between Customs Act (Section 11) and the FERA is only with respect to Section 18 (1). Therefore, the order impugned suffers from lack of jurisdiction to adjudicate upon this issue. This is further made by provisions of Section 50 of the FERA which clearly lays down that in such cases, the matter is to be adjudicated by the Director of Enforcement or the delegated subordinate authority. Learned Consultant, therefore, submits that the Order-in-Original impugned needs to be totally set aside as far as this issue is concerned.

3.2 With respect to misdeclaration of quantity of goods alleged, learned Consultant submits that the facts on record and not in dispute are that after the goods were removed to the Air Cargo Complex for export and the shipping bill had been filed with the Customs, the appellant, assisted by his CHA found that the packing of the goods had been tampered with. Fearing theft/pilferage while the goods were in the custody of Air Cargo Complex, they had immediately reported the matter to the Customs authorities and had also filed an FIR with the jurisdictional Police Station. They had applied for 100% examination of the goods to the Assistant Collector of Customs, which was allowed. The resultant examination showed that the goods now physically available in the Air Cargo Complex is much less than those which were declared in the shipping bill in view of the tampering on the said packages by unknown persons. In consideration thereof, the Assistant Collector of Customs, Air Cargo Complex allowed the appellants' request for amendment to the shipping bills so that the documents would reflect the correct quantity of goods exported. The value of the goods were also reduced on pro-rata basis in relation to the actual quantity found. Learned Consultant has shown us copies of the shipping bills on record wherein the endorsement of the Customs authorities