TMI Blog2010 (4) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... ents exported by it under several shipping bills in order to obtain undue drawback amounts. M/s. Shree Deepak Exports also seek waiver of pre-deposit of an amount of Rs. 69,02,713/- demanded from it as undue drawback granted to it. The Commissioner re-determined the FOB value declared in 85 Shipping Bills at Rs. 45,13,872/- as against the declared Rs. 3,98,21,688/-. He demanded an amount of Rs. 69,02,713/- from M/s. Shree Deepak Exports being undue drawback granted to it against export of readymade garments, FOB value of which had been mis-declared in the relevant shipping bills. He revised the FOB value of goods exported under claim for DEPB of a declared FOB value of Rs. 6,46,31,948/- to Rs. 59,45,939/-. He rejected DEPB claim in respect of 45 shipping bills as the DEPB claimed was above 50% of the market value of the goods. He denied claim for drawback of Rs. 15,30,644/- made against export and under 13 shipping bills finding that the market price of the goods involved was Rs. 10,80,480/-. He imposed penalties on the appellants as follows : Sr. No. Applicants Name Penalty 1. Shri Idris Ujjainwala Rs. 4,00,000/- 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal. Hence both the cases are taken up together for considering all the applications impugning demand and penalties listed above and seeking waiver of their pre-deposit. 4. The facts of the cases are that on receiving information regarding export of ready-made garments of inferior quality, odd sizes and very low value through Chennai Port by M/s. Aadee Exports Imports and M/s. Ganesh Yarntex Exports Pvt. Ltd., searches were conducted and incriminating documents recovered under panchnama. M/s. Aadee Exports Imports is a proprietary concern of Shri Deepak Jhunjhunwala and Shri Suresh Jhunjhunwala is the power of attorney. Scrutiny of documents revealed that Shri Suresh Jhunjhunwala is also associated with exports made by the applicant firms namely M/s. Shree Deepak Exports and M/s. Suresh Enterprises. It was observed that both the main applicants namely M/s. Suresh Enterprises (SE) and M/s. Shree Deepak Exports (SDE) had exported ready-made garments by mis-declaring the value under claim for DEPB/Duty Drawback. Documents relating to the export of goods were scrutinized. On detailed investigation by DRI, it appeared that the above applicants had indulged in massive fraud and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Tex-Age (supra) is applicable to the cases at hand. He further submitted that when the examination reports were available oral evidence to the contrary could not be relied on. In the case of M/s. Shree Deepak Exports several shipping bills in question were the subject matter of the order-in-original No. S/10-83/99-DEPB-GR. VII ACC dated 13-8-09. The original authority revised the FOB value to Rs. 300/- to Rs. 320/- per shirt, following the examination report of SIIB, as against the FOB value of Rs. 485/- per shirt declared. In the appeal against the said order, the Commissioner (Appeals) restored the FOB value of the shirt at Rs. 485/- each allowing the appeal. This appeal was not challenged by the department and the same had attained finality. He relied on the judgment of Supreme Court in the case of Kothari Filaments v. Commissioner of Customs (Port), Kolkata reported in 2009 (233) E.L.T. 289 (S.C.) = 2009 (13) S.T.R. 225 (S.C.) to argue that non-supply of the examination report involved violation of principle of natural justice. He further submitted that it was a case where the examination reports of the export goods were not supplied to the appellants an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no consignments were seized or available to examine the goods exported. On the contrary the documents procured under RTI Act, clearly shows that the goods were ordered to be examined Department has not furnished the examination report to the appellant exporters. We also find that there is no allegation of any connivance between the exporter and the examining/appraising officer. Moreover, in the case of M/s. Shree Deepak Exports at least 16 shipping bills, which are the subject matter in the instant appeal relating to readymade shirts, representative samples were drawn and forwarded to SIIB branch of Air Cargo Complex, as FOB value appeared to be on the higher side. As per the report of the SIIB Branch, the value of the shirts was reassessed as Rs. 300/320 per shirt. But in appeal, the Commissioner (Appeals) held that the value declared in the Shipping Bills was correct. The said order of the Commissioner (Appeals) was accepted by the Department. In the light of the same, prima facie, the actual market value as determined in the impugned order in respect of M/s. Shree Deepak Exports cannot be accepted. We do not find any reason as to why the assessment and examination orders/re por ..... X X X X Extracts X X X X X X X X Extracts X X X X
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