Abhishek Exports vs CESTAT

C.N. Ramachandran Nair, J.—Heard the counsel for the appellant and Sri. Thomas Mathew Nellimoottil, Standing Counsel for respondents. After hearing both sides and after going through the impugned orders of the Tribunal [2007 (208) E.L.T. 155(Tri.-Bang.)] and the lower authorities, what we notice is that the allegation that led to levy of penalty u/s. 114 of the Customs Act is in respect of export cargo for getting undue benefit under DEPB scheme. Admittedly, the goods exported was garments - knitted T-shirts-declaring an average value at Rs. 175 per piece. However, on enquiry customs found that the average market value per piece will not be more than Rs. 40/-. Consequently a case was booked against the appellant. The appellant resisted the department''s claim by producing the details. However, on second round of enquiry by the intelligence wing and also on analysis of the yarns count, the Department proved that the version of the appellant in respect of the yarn was bogus. We do not want to interfere with the findings on facts entered into by the Tribunal based on which they confirmed adjudication order. The Tribunal has also followed the principles laid down by the Hon''ble Supreme Court in the case reported in Om Prakash Bhatia Vs. Commissioner of Customs, Delhi, .

In view of violation of S. 113 leading to consequent confiscation u/s. 113, penalty is levied under S. 114 of the Customs Act. However, counsel for the appellant submitted that penalty is based on estimation of value based on market enquiry. Considering these facts we feel reduction is called for in the penalty amount. Accordingly, we modify the order of the Tribunal and that of the lower authorities by reducing the penalty amount from Rs. 3 lakhs to Rs. 2 lakhs. The appeal is allowed in part as above.