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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2620-2622 OF 2004

Commnr. Of Customs, Lucknow

Appellant(s)

VERSUS

G.P.Jaiswal & Ors.

Respondent(s)

WITH

CIVIL APPEAL NO. 4341 OF 2004

O R D E R

In C.A.Nos.2620-2622/2004

One M/s. Yash Export had exported consignment of PVC

soles and the valuation which was entered and declared for

export of the aforesaid consignment was grossly over

invoiced. It was found that though the said PVC soles were

purchased from Agra at Rs.6.25 per pair, they were

misdeclared and value as shown in the invoices at Rs.380 per

pair. It was all done fraudulently to avail DEPB credit to

the tune of Rs.24,12,114/-. When the aforesaid facts came

to the notice of the appellant/Custom Authorities, a show

cause notice dated 10.3.2000 was issued under Section 124 of

the Customs Act, 1962, for confiscation of the aforesaid

goods under Section 113(d) of the Customs Act, 1962.

Digitally signed by

Suman Wadhwa

Date: 2015.04.01

15:46:46 IST

Reason:

Signature Not Verified

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Insofar as these three respondents are concerned, they

were also roped in with the allegations that they had

colluded with M/s. Yash Export in mentioning the inflicted

figure in the invoices. Order-in-Original dated 29.4.2002

was passed, after completing the required formalities

confiscating the goods under Section 113(d) of the Act. At

the same time option was given to the exporters to seek

release of those goods on payment of fine of Rs.2,50,000/-

in lieu of confiscation.

In the Order-in-Original passed by the Commissioner,

penalties on the three respondents to the tune of

Rs.25,000/-, RS.50,000/- and Rs.25,000/- respectively were

also imposed. Insofar as respondent no.1 Sh. G.P.Jaiswal is

concerned, he was del-credere agent in this case.

Respondent no.2 Rakesh Mishra was person who had looked

after the container ICD, Varanasi, and received payment of

service rendered on behalf of one Mr. Sudhir Malik.

Respondent No.3-Rakesh Srivastava was working as

Superintendent of ICD, Varanasi.

These respondents filed appeals against the order of

the Commissioner before the CESTAT. CESTAT has, Vide

impugned judgment dated 12.11.2003, set aside the order of

the Commissioner on the ground that as it was a case of over

invoicing, action under Section 113(d) of the Act for

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confiscation of the goods could not have been taken for the

aforesaid default/breach on the part of the exporter. As a

result, it is stated that once the goods were not liable for

confiscation, the question of imposition of penalty under

Section 114(I) of the Act also would not arise.

The main submission of Mr. K. Radhakrishnan, learned

senior counsel appearing for the Department, is that the

aforesaid view of the Tribunal that it was not a case where

the goods could not be confiscated under Sec.113(d) of the

Act is erroneous, and law in this behalf is well settled by

the judgment of this Court in Om Prakash Bhatia vs.

Commissioner of Customs, Delhi (2003) 6 SCC 161. He also

brought to our notice the judgment of the CESTAT itself

which is rendered in the appeal that was filed by the

exporter

in

the

instant

case

challenging

the

Order-in-Original on the ground that there could not have

been confiscation under clause (d) of Section 113 of the

Customs Act and the said appeal was dismissed by the

Tribunal following the aforesaid judgment in the case of Om

Prakash Bhatia and the judgment Yash Exports Inc. vs.

Commissioner of Customs, Lucknow reported in 2005 (179)

E.L.T. 238. We find force in the aforesaid submissions of

Mr. K.Radhakrishnan.

A perusal of the judgment of this Court in Om Prakash

Bhatia would reveal that under identical circumstances the

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Court held that provisions of clause (d) of Section 113 of

the Act would get attracted and the goods may be liable