Page 162 - ELT_3rd_1st May 2020_Vol 372_Part

384 EXCISE LAW TIMES [ Vol. 372

3. Ld. Counsel for the appellant would submit that in the first round,
the sample was tested for “Nubuck Leather of Cows” whose description was
given in Public Notice No. 3.ETC/27-5-1992 issued under EXIM Policy 1992-97 at
Sl. No. 1 (L). He would submit that their Nubuck Leather was made from
goat/sheep skins and hence is not covered specifically by the public notice.
Therefore, its export is not specifically permitted without a licence. However, he
would draw the attention of the Bench to the public notice reads as follows :
“Any new type of finished leather not covered above may be permitted for
export, subject to testing and certificate by the Central Leather Research In-
stitute.”
He would therefore argue that any leather even if it is not covered by public no-
tice can still be exported subject to testing by CLRI which was done in their case.
Therefore, there is no restriction on export of the goods which they exported. In
view of the above, the order of the first appellate authority upholding the order
of the lower authority is incorrect and needs to be set aside.
4. Ld. A.R. reiterates the findings of the lower authorities and asserts
that the impugned order is correct and calls for no interference.
5. We have considered the arguments on both sides and perused the
records. As is evident from the second test report of CLRI dated 27-12-2010 re-
produced above, the sample was tested by CLRI to see if it matches the descrip-
tion in the shipping bill. In the first test report, it was tested on the specifications
for “Nubuck Leather of cows or buffaloes” while the description of the goods by
the appellant was “Sheep Nubuck Leather”. The second sample was ordered to
be tested which was tested and it was again confirmed that it is not Nubuck
Leather at all as the process of snuffing essential for making nubuck leather has
not been undertaken. From the above, it is clear that there was misdeclaration of
the goods in the shipping bill by the appellant. The confiscation of the goods for
improper export is provided for on various grounds under Section 113 of the
Customs Act. Clause (d) of Section 113 provides for confiscation of 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. Confiscation of goods where the
description does not match with the declaration is provided for under Section
113(i) and (ii). These are reproduced below :
“(i) any goods entered for exportation which do not correspond in respect
of value or in any material particular with the entry made under this Act or
in the case of baggage with the declaration made under Section 77;
(ii) any goods entered for exportation under claim for drawback which do
not correspond in any material particular with any information furnished
by the exporter or manufacturer under this Act in relation to the fixation of
rate of drawback under section 75;”
6. In this case, as per the usual practice, the exports were not held up
but were allowed after taking an undertaking from the appellant. After the test-
ing, it was found that the nature of the goods exported did not match with the
description given in the shipping bill. Therefore, they have been confiscated un-
der Section 113(i) and (ii) of the Customs Act, 1962. We also find that there is no
confiscation under Section 113(d) for export or attempted export in violation of
the prohibitions under Foreign Trade Policy or any other law. We, therefore, find
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