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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, MADRAS
S. Kalyanam, V.P. Gulati, JJ.
Exotic Fashions -Appellant
Versus
Collector of Customs, Bangalore -Respondent
S/Order No. 72/1995, C/Stay/112/95-MAS Appeal No. C/129/95-MAS, 72 of 1995, 112 of 1995, 129 of 1995
Decided On : 09-05-1995
A.S. Sundar Rajan,Arulswamy
Per Shri V.P. Gulati: By these applications the applicants have pleaded for dispensation of the pre-deposit of the following penalties levied on the respective applicants under the impugned order:
| Applicant | Penaltv | ||
| (I) | M/s. Exotic Fashions | Rs. 50,00,000 | |
| (2) | Shri Shane Alam | Rs. 50,000 | |
| (3) | Shri Prasad R. Sawant | Rs. 1.00,000 | |
| (4) | ShriMunilalMehra | Rs. 1,00,000 | |
| (5) | Smt. ZarineAlam | Rs. 50,000 | |
| (6) | M/s. Galaxy International | Rs. 50,00,000 | |
| (7) | Smt. Noorjahan Nawas Alam | Rs. 50,000 | |
| (8) | Shri AhtarshramAlam. | Rs. 50,000 | |
| (9) | Shri Javed Alam | Rs. 50,00,000 |
2. The learned lower authority under the impugned order has confiscated 136 packages, which were declared to be containing video cassettes, audio cassettes and ball point pens valued at Rs. 11,48,44,547 and which on examination were found to be either scrap or not conforming to the quality declared and were valued at Rs. 3,38,480, for gross over-valuation of the goods under section 113 (d) of the Customs Act and held the applicants to be liable to penalty under section 114 (i) of the Customs Act, 1962.
3. The learned Consultant for the applicants has pleaded that he is not raising any issue in regard to the facts brought out in the order of the learned lower authority but is confining his plea only to the legal aspect. His plea is that the goods notwithstanding the misdeclaration could not be confiscated under the provisions of Section 1 13 (d) of the Customs Act. He referred us to the provisions of this section and Sec 113 (d) for convenience of reference is reproduced below:
"113. Confiscation of goods attempted to be improperly exported. etc.-The following goods shall be liable to confiscation —
(d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported. contrary to any prohibition imposed by or under this Act or any other law for the time being in force;"
He pleaded that before the provisions of this section could be invoked it has to be shown that the goods were sought to be exported contrary to any prohibition imposed either under the Customs Act or any other law in force. He pleaded that prohibition could be either in terms of any provisions of any law other than the Customs Act or in terms of Section 1 1 of Customs Act,'62 but there is nothing to show that any prohibition under any other law or under Section 1 1 has been imposed in respect of the video cassettes or audio cassettes or scrap of the ball point pens which were sought to be exported. He further pleaded that under Section 11 of CA 62 a notification will have to be issued for anyone of the purposes specified under Section 11 (2) and in the absence of any notification having been issued the goods could not be considered as prohibited goods. He further pleaded that none of the other provisions of Section 113 could be invoked in the applicants' case inasmuch as the applicants have sought to export the goods by filing regular shipping bill and also for the reason that the goods were neither dutiable nor prohibited goods. The learned Consultant's attention was drawn to the provisions of Section 50, which for convenience of reference is reproduced below:
"Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form.
(2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration to the truth of its contents."
He fairly conceded that so far as the declaration given in regard to the value and description of the goods are concerned that may not have been true as the description and the value of the goods have been found on examination at variance with the declaration. Reserving his pleas on the factual aspect for urging at the time of final hearing of the appeals, he
