Legal principle

Mere storage of goods is preparation, not an 'attempt to export' under Section 113(d), and neither confiscation, nor re-valuation based on an uncorroborated retracted statement, nor penalty under Section 114(i) (which presupposes confiscability) can be sustained without independent corroborative evidence of a proximate act towards export.

Court decision

The Tribunal set aside the impugned order insofar as it absolutely confiscated the shark fins under Section 113(d), re-determined their value at a higher price, and imposed the Rs. 7 crore penalty under Section 114(i) on the proprietor; the appeal was allowed in favour of the appellant.

Facts

Global Impex Trading, a sole proprietorship of Shri M. Sarafath Ali engaged in exporting fish and marine products including shark fins, had 2961 kg of dried shark fins at its Mumbai godown and 5061.88 kg at its Verawal godown seized by DRI following a search on 01.09.2018 on intelligence that it was attempting to export prohibited shark fins (export banned by Notification No. 110 (RE 2013)/2009-14 issued under Section 5 of the FTDR Act, 1992). The SCN dated 27.02.2019 proposed re-valuation of the fins at USD 1000 per kg, confiscation under Section 113(d) and penalty under Section 114(i) on the proprietor and three employees. The Order-in-Original dated 24.10.2019 confirmed the confiscation, accepted the re-determined value, and imposed a penalty of Rs. 7,00,00,000 on the proprietor while acquitting the employee co-noticees. The appellant also sought amendment of its prayer clause and Revenue sought change of the respondent's cause title to the Principal Commissioner/Commissioner of Customs (Preventive) Jamnagar, both of which the Tribunal allowed.

Key provisions

• Section 113(d), Customs Act, 1962 — Confiscation of goods attempted to be improperly exported
• Section 114(i), Customs Act, 1962 — Penalty for attempt to export goods improperly etc
• Section 5, The Foreign Trade (Development and Regulation) Act, 1992 — Foreign Trade Policy.
• Section 14, Customs Act, 1962 — Valuation of goods